The Tuesday: Free Speech, America-Style . . .

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BY KEVIN D. WILLIAMSON January 04, 2022

Free Speech, America-Style

Welcome to the Tuesday, a weekly newsletter about language, culture, and politics. To subscribe to the Tuesday — and please do! — just follow this link.

Free-Speech Lessons from Abroad

It is not the case that Canada, Western Europe, and Australia are authoritarian hellholes where illiberal rulers trample mercilessly upon the civil rights of their hapless subjects. But it is the case that American-style free-speech protections, as enshrined in the First Amendment, do not exist in these places. And that matters. It matters in those countries, and it matters in the United States, where the legal protection of free speech faces the threat of being suffocated by social pressure on both private and public actors to suppress speech that is deemed — almost always opportunistically and vindictively — dangerous.

It is likely that, as a matter of global consensus, one set of rules is going to prevail: the American model or the European model — or, rather than "European," the model that more closely resembles the narrower practices in most of the liberal democracies outside the United States.

Consider the case of Australia, where courts have ruled that there is no personal right to free speech, in spite of the country's notional protections for freedom of political communication. In one important case, a worker in the national government's immigration agency was fired for criticizing the agency's performance in the matter of offshore immigration-detention facilities. She used a pseudonym, did not advertise her connection to the agency, made the posts on her own time from a personal device, etc. There was no real employment issue — she was simply fired for saying what she thinks, in private life. In another high-profile case, a high-court judge described free-speech rights as "still not yet settled law." No doubt the judge is correct — but such rights should be settled law. These are fundamental things.

Australia's laws are much more like those that apply in Europe than they are like our own. Australian law varies by jurisdiction, but there are sanctions on so-called hate speech (and other kinds of speech) everywhere in the country, and, in some instances, those penalties are criminal rather than merely civil. As we have seen in both the English-speaking countries and in Europe, what counts as hate speech is easily expanded, meaning that the real scope of free speech is easily narrowed. In Germany, Christian pastors have been arrested for preaching against homosexuality. The same is true in Sweden. And England. And in the United States, too — even constitutional protection will not avail against committed institutional opposition.

Of course, there is always some pretext, some argument that free speech does not apply in this case because the speakers are not really speaking but inciting, creating some kind of real and present danger. There may be some merit to some of those arguments in some circumstances, but they are quickly and easily perverted. For example, the fact that trans people have a relatively high rate of suicide has been (cynically and opportunistically) taken to mean that criticism of trans-related political stances and ideologies are literal violence against trans people, who, being traumatized by political disagreement, presumably will jump off the nearest bridge. That isn't much of an exaggeration.

The countries that have the most compelling argument for exceptions to free political speech are, for obvious reasons, German-speaking. In Austria, for example, the law allows for imprisoning people — for years — for the crime of selling certain books. (You can guess which ones.) Germany, guided by the doctrine of streitbare Demokratie — "militant democracy," the notion that liberal democracies must sometimes act in illiberal and antidemocratic ways to defend the fundamental elements of liberalism and democracy — gives the state the ...   READ MORE




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