Sticks and Stones: Freedom of Speech in Europe and the U.S.
In May 2017, a sea of white nationalists stormed through Charlottesville, Virginia, piercing the night with fire, recalling a certain history of the American south that so many thought had been buried decades ago. Instead of from burning crosses, the fire came from burning tiki torches—the kind that might otherwise grace the corners of a patio in summer, meant to scare away mosquitos. Mundane consumer products, but paired with chants that revealed old, old hatreds: “Blood and soil!” and “Jews will not replace us!,” they cried into the night before being dispersed, leaving a shocked university town in their wake.
Then in August, they returned for the now infamous “Unite The Right” rally led by America’s preeminent neo-Nazi, Richard Spencer—presumably one of the “very fine people on both sides” for Donald Trump, who went on television and created a false equivalency between the swastika-sporting, openly-armed members of the alt-right and those who had turned out to protest against them. One of these latter did not leave Charlottesville alive; thirty-two year old Heather Hayer was killed when a white nationalist from Ohio intentionally rammed his car into a crowd of counter-demonstrators.
Observed from Europe, the scene seemed to resemble a colorized World War II documentary more than a prime-time news segment. And still, our current reality is undeniably one in which a radical group feels confident and comfortable enough to call for the supremacy of the white race in a usually idyllic US-college town, sporting symbols that, while banned in much of Europe, may be brazenly—and legally—carried on the streets of the United States, under the protection of the First Amendment to the U.S. Constitution.
Learning from the past
This difference of approach to free speech is historically situated. In the wake of independence from Great Britain, the prevailing spirit in the former Thirteen Colonies was one of great skepticism towards centralized political authority and the potential for tyranny. The 1789 Bill of Rights, the first ten amendments to the U.S. Constitution, thus swung heavily towards explicit protection of civil liberties from government interference.
With a few notable exceptions,1 U.S. courts have continuously preferred to protect speech over other considerations—in a broad diversion from Europe, even hate speech. In a landmark case in 1969, the US Supreme Court reversed the conviction of Clarence Brandenberg, for a speech he gave at a Klu Klux Klan rally. The decision set an extremely high bar for prohibiting speech; an incitement of “imminent lawless action.” Decades later, the Supreme Court again upheld the Klan’s right to hate speech, this time the right to burn crosses.
Oliver Wendell Holmes, delivering the majority opinion of the Supreme Court in the 1919 case Schenck v. United States famously wrote that even the most stringent protections of free speech would not protect “falsely shouting fire in a crowded theater.” In Schenck, the Court upheld the government’s ban on distributing flyers opposing the draft during World War I as it presented a “clear and present danger” to recruitment efforts; that phrasing then became the legal precedent for infringing upon the First Amendment.
In Europe, on the other hand, the recent history of Nazism has shaped policies and ideas about free speech throughout the continent. The memorial on Bebelsplatz in Berlin, for example, is supposed to remind people that there were times when freedom of expression was not the status quo. Looking down through the glass in the middle of the cobblestone square, one sees an array of empty, white bookshelves—a reminder of a time, 85 years ago, when diversity in thought and idea was literally burnt to ashes by the Nazis, who used the power of words to dehumanize entire groups of people in order to justify their decimation.
In 1950, the newly founded Council of Europe drafted the European Convention on Human Rights with the atrocities of WWII well in mind, intending to protect human rights in Europe. Article 10 of that treaty guarantees “freedom of expression,” which can be restricted under certain conditions, such as national security or the protection of rights enjoyed by others. Indeed, many European nations have criminalized “inciting racial hatred,” and enforce these laws on a regular basis.
To Europeans, the American approach based on a “free marketplace of ideas” seems strange. In the United States, victims of hate speech have little recourse unless they have been actively discriminated against in an illegal way: a baker cannot refuse to provide a cake for a gay wedding, but he would nevertheless be perfectly free to post homophobic slogans in his shop. Or to deny that the Holocaust ever happened—something that most European governments will not tolerate due to the historical events that have shaped national as well as European law.
“The First Amendment is rather unique. Free speech is widely protected with very few exceptions,” explains Nani Jansen Reventlow, an international lawyer and passionate human rights advocate, who has litigated crucial freedom of expression cases and runs the Digital Freedom Fund, an organisation that supports court litigation on privacy rights and free speech. According to her, European countries attach more duties and responsibilities to freedom of speech than the United States does.
Free speech in the digital age – quo vadis?
In a recent interview, Facebook CEO Mark Zuckerberg justified his opposition to removing posts that deny the Holocaust, because “there are things that different people get wrong.” This is a shocking stance to European ears; in Germany, Facebook has indeed been obliged to delete these posts since the entry into force of the 2018 Network Enforcement Act, or Netzdurchsuchungsgesetz. In order to combat online hate speech, the bill—which has drawn criticism from experts and civil society, who say it can be used to restrict the freedom of expression and dissent on social media--requires social networking platforms like Facebook or Twitter to delete illegal content, including posts inciting violence or hate.
The Zuckerberg incident is yet further evidence that the conversation around free speech issues, particularly online, is still in its incipiency. How do we deal with these cases in an increasingly interconnected world, in which ideas about freedom of speech differ regionally, but while speech is exercised on a global scale? More often than not, governments look the other way and use rapid technological development as a means to justify legislation that stifles free speech, rather than looking at solutions that protect speech as a human right, online as well as offline.
France, for instance, criminalizes “apology for terrorism,” making it possible to prosecute individuals who refer to a terrorist act or group in a positive or apologetic manner—regardless of whether that person is a supporter of the group or intends to incite violence by making these statements. According to statistics from the French interior ministry, 20% of all investigations involve minors, since teenagers are a very active demographic online. But is the slope too slippery? A similar law (but for very different purposes) recently passed by the Hungarian parliament imposes a 25% tax on organisations and media outlets that portray immigration in a positive light.
The role of the defender
“This is not a new trend”, says Jansen Reventlow. Overly broad laws that limit free speech with no apparent legitimate aim have been used in other regions for quite some time. “The difference is we have always associated these laws with undemocratic regimes, but now we are seeing these developments close to home. With judicial checks and balances in place, this would be corrected.” If those fail, it is up to civil society organisations to raise awareness of these issues, advocate on a local, national or even international level, she says.
This is an endeavor that the Digital Freedom Fund supports. Even though the organization is fairly new, its goals are ambitious: Next to providing financial support for landmark cases with potentially wide-reaching impact, its aim is to create collaboration among different digital rights defenders and help them to push for policy changes throughout Europe. While this means of bringing about reform and justice has been common practice in the US for decades, with cases ending racial segregation in schools or confirming the right to same-sex marriage, strategic litigation has only recently become popular in Europe.
While technology advances at an unprecedented pace and legislators are finding it increasingly difficult to keep up, Jansen Reventlow is concerned about the lack of protest among the general population when governments try to undermine basic human rights, such as the right to free speech. She says there is a lot of work that still needs to be done in this area, especially for the people who work in the field whose role it is to communicate how these issues have an impact on us all.
“I’d like to be more optimistic,” she says, when asked about the future of free speech, “But that is difficult at the moment.”
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