The return of the battle over free speech
Everyone favors free speech, but many believe it should be curbed with regulation.
In a nutshell
- New limits on free speech are advocated in Western democracies
- Progressives and conservatives demand restrictions for different reasons
- Censorship behind the guise of regulation is a pernicious danger
Free speech is a core freedom taken for granted in Western democracies. With the rise of social media platforms and new forms of discussion, free speech has been hotly debated recently. Some complain they want more of it, while others want to regulate it, and some want both. Beyond “culture wars,” the real issue will be regulation to intervene beyond defamation, fraud and incitement to crime. Recent initiatives have gradually shaped the possible fates of free speech in Western democracies.
Free speech is an essential part of democratic culture and institutions, and broadly understood progress. From a cognitive point of view, the free exchange of ideas enables the development of knowledge – personal and scientific. As the philosophers John Stuart Mill (1806-1873) and Karl Popper (1902-1994) have argued, the competitive, open process of criticism of ideas is the best way to discard error and falsehoods in hard and human sciences. That does not mean that all bad ideas are always discarded, but the growth of correct ideas is enabled. Some people still believe the Earth is flat, but we have been flying planes for more than a century, and this is what truly matters.
From a political point of view, free speech and property rights act as a bulwark against tyranny. When information about government deeds is shared freely – thanks to free speech – it gives informed citizens an incentive to ask for accountability. Free speech goes hand in hand with tolerance (although it enables the intolerant to speak) and mutual understanding – another aspect of progress against tyranny and its arbitrariness.
However, there is a problem with this bulwark very aptly described by Winston Churchill in 1943: “Everyone is in favor of free speech. Hardly a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone says anything back, that is an outrage.”
Woke or moral panic
From some on the political right, the complaint lately has been that ideas and people are being “canceled” and censored by major social media like Facebook or Twitter because of the conservative criticism of woke culture.
Conservative groups and personalities, including former United States President Donald Trump and U.S. senators Marco Rubio and Ted Cruz, want the government to protect their speech by enforcing more free speech and neutrality on these platforms. They argue that protecting their constitutional right to free speech should be accomplished by curbing the platforms’ moderation of right-wing content and countering their “canceling” practices.
To many observers, the conservative argument here is a form of moral panic. Free speech is not a right to a public platform, and censorship comes from the government, not from private publishers or platforms. In the U.S., the First Amendment is a protection from the government. Property rights thus trump the right to free speech. Publishers of magazines or newspapers have the right to refuse opinion texts (op-eds) submitted to them. Social media can moderate content and suspend, or even kick out, participants if they do not respect their terms of service.
These so divergent groups want free speech ‘within boundaries’ beyond mere defamation and incitement.
“Canceling” in that context is unproblematic. Everyone has the right to go and speak elsewhere. For example, on February 21, 2022, Mr. Trump launched his own social media platform, Truth Social, to “stand up to the tyranny of big tech.” That was his response to being banned from Twitter and suspended from Facebook in early 2021. (The project has not been successful.) Acquisition of a successful platform to change it is also possible: billionaire Elon Musk launched an attempt to buy Twitter, claiming that it was stifling free speech. And this is how so-called “censorship” issues are solved in a free market democracy.
Regulate speech now
At the same time, though, conservative groups do not mind speech limitations regarding sexual content, anti-religious ideas or racial history. In the U.S., several Republican-governed states have introduced a form of regulation for school curricula. In this regard, they are, conceptually, on the same page with those on the left who want governments to regulate free speech to avoid “offensive” or “dangerous” ideas – only about different matters: LGBT phobia, racist and sexist speech.
These so divergent groups want free speech “within boundaries” beyond mere defamation and incitement. Cancel culture, in that case, goes a step further and resorts to either physical violence (activist students on some campuses in the West) or regulation by lobbying the authorities to censor the ideas they find offensive. Regulators in democratic institutions have long responded favorably to demands of greater government regulation in the realm of ideas – through hate speech or anti-revisionist laws.
The context of the Russian war in Ukraine and the onslaught of Kremlin-produced propaganda probably increased this concern in democracies. In April 2022, former U.S. President Barack Obama delivered a high-profile lecture at California’s Stanford University in which he called for protecting – but regulating – free speech. And not even a week after the agreement over the European Digital Service Act (see box 2), a “Declaration of the future of the internet” was circulated. It aims to increase regulation over speech. A day earlier, a short-lived “Disinformation Governance Board” was launched in the U.S., under the umbrella of the Department of Homeland Security, with the goal of countering foreign mis/disinformation.
The argument is that democracy is threatened by hate speech, disinformation and conspiracy theories. In theory, platforms offer a broad space for exchanging various ideas, the users actually join groups dedicated to formulating, sharing and discussing particular matters. However, participants select the groups not on an “open rationality” basis but rather on a “confirmation bias.” Some people thus effectively shut themselves off to other opinions and facts, and network effects make bad ideas snowball very quickly. Clearly, this represents a negative externality – a typical justification for government intervention.
The optimistic scenario is that new regulations will indeed strengthen democracy. But things could get more complicated and scenarios more pessimistic.
In all these recent instances, democratic authorities distance themselves from censorship- and surveillance-based regimes like in Russia or China. However, the quest for a free and safe internet opens the door, by very definition, to more regulation. As Mill warned us, there is a clear danger of censorship behind the guise of regulation – even in democracies.
Facts & figures
John Stuart Mill defended free speech on the following basis:
A silenced opinion can be based on truth; to think that this could not be the case is to assume one’s infallibility.
Even if a minority opinion is wrong, it could be partly correct. As any opinion rarely reflects the entire truth, it is better to let the final formulation emerge from the confrontation of various views.
Even if the prevailing general opinion describes the whole truth, we must ensure the free expression of divergent views so that the dominant view can be contested and thus not be taken as prejudice and understood on the rational ground.
Silencing a minority opinion would weaken the “meaning of the doctrine itself.” Challenging the majority enables it to retain its “vital effect,” grounding its conviction in “reason and personal experience” and thus preventing it from becoming a dogma.
Finally, accepting free speech and dissenting opinions but “only within certain boundaries” raises the issue of which boundaries, how to define them and who is to do so. Mill warned of an instrumentalization of “acceptable boundaries” by the partisans of the mainstream opinion to silence opponents by labeling their views as “dangerous,” “extreme,” or “lacking restraint.”
Increased self-censorship from platforms (to follow regulations and avoid fines) will be based on algorithms. Some fear that this effectively brings these endeavors closer to the position of authoritarian regimes.
Good intentions in legislation sometimes lead to unintended effects. As Benjamin Constant remarked two centuries ago, speech regulation gives governments “the right to determine the consequences” of opinions. Then, governments acquire the right to determine what is true and false, especially when the incriminated concepts (“offense”) are subjective and not precisely defined. This situation introduces a fair dose of arbitrariness as two questions arise. Do they have the necessary knowledge to determine this? And do they have the right incentives? The future of free speech lies in the answers.
Democracy knows best
One issue here is the “we are a democracy; we cannot be wrong” assumption. “The inquisition was irrational, and democracy is rational.” This is the essence of Mill’s criticism of assuming infallibility of the majority opinion. Democracy is imperfect, and it is precisely free speech and criticism – including conspiracy theories – that help prevent its metastasizing into authoritarianism.
If democracy were perfect, we would not even talk about corruption. Will corruption suspicions now be labeled as “conspiracy theory?” An illustrative case: the Hunter Biden computer story (of a laptop containing thousands of authentic emails delivered in 2019 at a Delaware repair shop and never collected) was first dubbed as “conspiracy theory” and “disinformation” by the progressive media and the political establishment. Eventually, it proved worthy of investigating. A law against “disinformation” would have thus probably prevented the investigation and the eventual emergence of the truth.
Saying that “we are a democracy” does not suffice to protect society from the danger of knowledge errors at the top and effective censorship. Creating independent bodies to investigate the matter can help. Again, though, the bold assumption here is that experts always have the knowledge, and that governments possess the wisdom of choosing the right experts with the relevant expertise. In such a context, regulating free speech beyond direct crime incitement, fraud and defamation is a profound democratic challenge, and it can easily undermine the truth.
The “conspiracy” label can be instrumentalized, sometimes to protect power. Interestingly, between the two extremes of conspiracy theory and “care-bears” views of the world lies the complex reality: there sometimes are some vested interests that seek power and money with and within democratic governments. Incentives matter then, and this again raises the question of “who will watch the watchers?” and has justified constitutional guarantees such as the First Amendment in the U.S.
The stories of whistleblowers Edward Snowden or Chelsea Manning show that democratic powers can also practice severe censorship.
After all, more than 60 years back, a U.S. president, himself a general, solemnly warned his fellow citizens of the risks posed to the American democracy by an unchecked “military-industrial complex.” The stories of whistleblowers Edward Snowden or Chelsea Manning show that democratic powers can also practice severe censorship and hide uncomfortable truths – regardless of the “security” label put on the justification. Public choice theory, which stresses the role of individual incentives within democratic policy-making processes to criticize the naive “assumption of benevolence” in politics and bureaucracy, even won economist James Buchanan a Nobel Prize.
The future will thus be partly determined by the new incentives given by those laws and the ability of lobbies to impose their “truth” by mere regulation capture. Industrial lobbyists with direct access to higher authorities could have criticisms of their product censored under the pretext of “conspiracy theory.” Governments could do the same with some of their policies disliked by conspiracy believers. Regulation will always lead to bureaucracy, always bent on expanding its power, clientele and regulatory power. Beyond democratic challenges, it also has a fiscal cost.
An increasing number of social groups will be incentivized to play the “victim” game – effectively weakening democratic dialogue, communitarianism and sowing frustration. Governments will have the final say in selecting the “deserving victims” – and discarding the less worthy ones. In France, the anti-revisionist Gayssot Act of 1990 criminalized the denial of the holocaust sanctioned by the Nuremberg trials, but not of communist genocides in Ukraine, or such places as China or Cambodia. Parliament member Jean-Claude Gayssot happens to be a communist.
Facts & figures
The European Digital Services Act (DSA)
A deciding parameter in possible scenarios for the global spread of DSA will be the U.S.-EU power ratio. The regulation was first submitted together with Digital Markets Act (it aims to foster competition in the digital world) by the European Commission to the European Parliament in December 2020. If passed on by national parliaments of the EU member states, the DSA will go beyond banning illegal content, addressing “disinformation,” and imposing huge fines of up to 6 percent of Big Tech platforms’ global revenues if they fail to moderate incriminated content. It is uncertain whether the U.S. would let the EU mete out fines to American Big Tech firms. The U.S. constitutional protection of free speech by the First Amendment most likely will block the way to European regulatory centralism. The U.S.’s own Disinformation Governance Board was, after all, “paused” by the Homeland Security Department amid a barrage of criticism after only three weeks.