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Free Speech: Was it a Bad Idea?
For the sake of argument, let’s not have the argument about whether the EU itself is a bad idea right now. Mentally replace the words “EU Commission” with “a group of European countries that finds it expedient at times to negotiate as a single country.” That will keep us focused.
The Commission together with Facebook, Twitter, YouTube and Microsoft (“the IT companies”) today unveil a code of conduct that includes a series of commitments to combat the spread of illegal hate speech online in Europe.
The IT Companies support the European Commission and EU Member States in the effort to respond to the challenge of ensuring that online platforms do not offer opportunities for illegal online hate speech to spread virally. They share, together with other platforms and social media companies, a collective responsibility and pride in promoting and facilitating freedom of expression throughout the online world. However, the Commission and the IT Companies recognise that the spread of illegal hate speech online not only negatively affects the groups or individuals that it targets, it also negatively impacts those who speak out for freedom, tolerance and non-discrimination in our open societies and has a chilling effect on the democratic discourse on online platforms.
In order to prevent the spread of illegal hate speech, it is essential to ensure that relevant national laws transposing the Council Framework Decision on combating racism and xenophobia are fully enforced by Member States in the online as well as the in the offline environment. While the effective application of provisions criminalising hate speech is dependent on a robust system of enforcement of criminal law sanctions against the individual perpetrators of hate speech, this work must be complemented with actions geared at ensuring that illegal hate speech online is expeditiously reviewed by online intermediaries and social media platforms, upon receipt of a valid notification, in an appropriate time-frame. To be considered valid in this respect, a notification should not be insufficiently precise or inadequately substantiated.
I’m not sure how this story is related, or even if it’s related, but I note it:
A French Jewish youth group sued Twitter Inc., Facebook Inc. and Google over how they monitor hate speech on the web, highlighting the challenge — and potential costs — for Internet platforms to regulate user-generated content.
The lawsuit filed at a Paris court by the Jewish youth group called UEJF is seeking more clarity on who moderates social network posts and how it’s conducted. Together with an anti-racism and an anti-homophobia group, UEJF published a report earlier this month showing Twitter, Facebook and Google’s YouTube deleted only a small number of posts flagged as hateful, threatening or promoting violence.
Points to consider:
We have some of the most powerful organizations in America helping foreign governments to suppress speech. Yes, they are private organizations, just like Ricochet, and what they choose to host on their property is none of our government’s business. In America. In principle.
But when do we ask ourselves, “Is the right to freedom of expression meaningful if these four private entities can control the vehicle by which almost all political speech and thought is now conveyed?” I submit to you that this is a question worth serious thought. The founders certainly understood the potential tyranny of an over-strong government. Did they give enough thought to the possibility of over-strong IT companies? Rhetorical question. They couldn’t have. So we’ll have to think this one through for ourselves, here in the 21st Century.
Holocaust denial is illegal in Austria, Belgium, the Czech Republic, France, Germany, Liechtenstein, Lithuania, the Netherlands, Poland, Romania, Slovakia, Spain, and Switzerland. It’s not in America, obviously. Is your commitment to freedom of expression such that you think it should be legal for neo-Nazis and ISIS fanboys in America to spout off about killing Jews and infidels to their heart’s content? My answer is “Of course it should be.” We settled this one in 1977 in Skokie. (If your answer is “No,” stop here and explain why not.)
If your answer is “Yes,” do you believe that this is because it is self-evident that we’ve been endowed by our Creator with certain unalienable Rights, among them the right to say what we please? Or do you think this is just a contingent and practical American tradition?
If the latter, you can stop here. Makes things simple. But if your answer is the former (or something along natural law lines), do you think it applies to Europeans? If not, why not?
Do you think it’s possible for individual people to lose a human right because they are collectively responsible for a historic crime? Consider, in particular, Section 130 of the German Criminal Code. To the modern American ear, it sounds like the Barnard Faculty Lounge’s idea of paradise. It’s easy to be against it on principle. Until you remember how that law came into being.
In Holocaust Denial Legislation, Working Papers du Centre Perelman de philosophie du droit, n° 2008/3., J.D. Josephs surveys the origins and the arguments for and against laws criminalizing Holocaust denial. This is literally and metaphorically an academic debate; there is no chance of convincing anyone in Europe right now that these laws are a bad idea. Terrorism tends to make people think the idea of “natural rights” is a luxury and a frivolity. I leave it to you to read and consider the arguments on the “for” side.
These are the reasons he notes on the “against” side. First, there’s the principle of it:
The principle argument of those opposed to Holocaust denial legislation is entirely bound up with freedom of expression. It is one of the most fundamental freedoms of all in any truly democratic society, famously encapsulated in that well-known phrase attributed to Voltaire: ‘I disapprove of what you say, but I will defend to the death your right to say it’.
Second, and importantly, there’s the pragmatics of it:
In restricting freedom of speech to deny the Holocaust, it is argued, one is playing right into the hands of the deniers. The reasoning for this is the danger of unwittingly turning the Holocaust denier into martyr. Professor Evans, expert witness at the Irving v Lipstadt trial, explained to the author that the publicity from Irving’s imprisonment in Vienna in 2005 made him “something of a martyr for freedom of speech, something Irving ‘had no interest in at all.’” This is what can be referred to as the popular-hated figure dilemma. It will boost the denier’s popularity, generating an interest in his words whilst exposing people to his deliberate falsehoods and lies. In the Irving v Lipstadt case, the reverse was true. As unpopular a figure as David Irving was, he was the person accusing Lipstadt of libel. So there was no outpouring of public sympathy in Britain during or after the trial in his favour. In fact if anything precisely the opposite was true; one only had to read the next morning headlines for proof.
It is surely a paradox that David Irving, whilst calling for his freedom of speech to deny the Holocaust, went out of his way to suppress the freedom of speech of Deborah Lipstadt. However, many sectors of the public and press were very sympathetic to him upon his incarceration in Austria. As Lipstadt herself put it during the interview “when Irving was imprisoned in Austria, people who vehemently opposed him immediately sprang to his defence – some of them even asking me to do likewise.”
Furthermore, critics argue that by having such laws demonstrates a lack of confidence in historical truth. Making deniers important enough to warrant legislation, the argument goes, attributes to them a status they should not be entitled to. After all, as playwright George Bernard Shaw once put it: “martyrdom is the only way in which a man can become famous without ability.”
Dieudonné’s a vile anti-Semite. The last thing I feel like doing is vigorously defending his right to be one.
The pragmatic results of these bans may affect how I feel about the principle. It’s my experience that yes, making people into martyrs valorizes their disgusting opinions. This goes both for Holocaust deniers and other species of lunatic bigots.
But I just don’t know if I have the confidence to say, “Take the training wheels off, Europe. Nothing bad will happen.”
Do you feel entirely confident in saying, “Of course the Continent should mix its track record with the Internet, the political effects of which we don’t yet fully understand?”
Do you feel entirely confident in the moral wisdom of our IT companies?
Of one thing, I’m pretty sure. It’s a bad idea to announce that you feel “a collective responsibility and pride in promoting and facilitating freedom of expression throughout the online world” when you’re announcing the steps you plan to take to limit it. Why not say the truth? “We feel a collective responsibility and pride in promoting and facilitating some expressions, but not others.”
The arguments for this position are neither totally irrational nor disgraceful, and saying anything else is stupid. Promoting stupidity about a major point of political principle cultivates stupidity. I doubt it’s a good idea to make people more stupid.
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(I don’t know if I’ll be able to tell you what all of this means and how it’s relevant to you, but I’ll surely try or die trying.)
First, any attempt to regulate “Hate” is an attempt to regulate thought. Hate crimes are conventional crimes committed while having unacceptable thoughts; hate speech is expressing unacceptable thoughts. The whole concept is evil.
With regard to the regulation of speech, if the regulation is done by popular opinion, that is one thing; when it is done by the government it is tyranny. Unfortunately, there seem to be circumstances where some degree of tyranny, e.g. holocaust denial laws or war, may be necessary. Like so much that government does necessary action may flirt with the tyrannical. We should never be comfortable with it. But even so, we may be able to support it.
On the other hand, free speech is necessary in order to preserve liberty. Without the ability to speak out against abuses of power people are helpless against abuses of power. To give a government power to regulate speech at all is to empower it to criminalize dissent.
So, we have a paradox. We will always be on the slippery slope and will always be arguing about acceptable limits to speech.
Claire,
This is a very large subject. I’ll start with a few categories that I think would be relevant before giving any answer.
First, the speech itself.
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Second, the media.
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Now that I have defined things in terms that have a meaning for me, I can proceed to ask questions.
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I would add that whether the government body is the EU or not is quite relevant. The EU has legislative authority without democratic oversight. Thus by definition the EU is incapable of meeting the most obvious clearly defined & measurable fairness standards for its own government publications and is in no position to judge anybody.
Regards,
Jim
I have the same view of hate speech as I do of hate crimes. Both are valueless concepts defined by the government, but nevertheless used by the government in the same fashion as all other laws and regulations, to control us. For example, tell me what sense it makes to change the penalty for killing your neighbor, whether or not you you’ve previously made clear that you don’t care for his racial background in general?
Other than clear cases of fomenting violence, speech should remain unfettered by the edicts of our elite masters, whether in the EU or here.
And, I agree that the shark is being jumped, even as we discuss…
We don’t have elite masters. We elect our government through a reasonably transparent process. There’s no “them.” There’s only who we put there.
There is just no common-sense way that you can convince even me, born and raised with late 20th-century 1st Amendment jurisprudence, no less Europeans that these countries have no legitimate state interest in getting ISIS recruiters off the Internet. This doesn’t pass the common-sense test.
There’s something that bothers me about the private vs government censorship debate. The unsaid element in this debate is the color of approval.
Ricochet can make the point that their censorship is appropriate since promoted pieces are a de facto seal of legitimacy under their banner, likewise the comments in all pieces reflect directly on their ability to sell their product.
Other social media have a more difficult time making that argument. Twitter and Facebook are almost common carriers. It is generally understood that these free services are not moderated or not edited. Where one might say, “EJ Hill, a member of Ricochet said…” no one says, “Joe Smith of Twitter said…” To the contrary, one is more like to say, “Joe Smith tweeted…” That identifies the method but does not convey Twitter’s approval. When something is on Twitter or Facebook those companies would have a hard time showing that it’s mere presence reflects back on them. Saying otherwise is like saying a telephone pole approves of the posters attached to it.
What it really boils down to is whether “shut up!” is a legitimate response to political differences.
“Now who’s being naive, Kate”
We have an elite class that gives us choices among the elite class. The Last President not to go to an elite, Northeastern School was elected almost half a century ago.
What if we rarely formally declare war, but are involved in some way in many conflicts around the world? I’m looking for actual jurisprudential principles that could be applied in some rational way. Once you accept that Holocaust denial laws might indeed be legitimate and necessary — somewhere — then the door is open.
Claire,
You are misquoting me. Of course, they have a legitimate state interest in getting ISIS recruiters off the internet. However, I am simply stating the obvious that their desire to insulate themselves from democratic checks & balances results in a shadow over their own legitimacy. That shadow won’t be removed by ever more bureacratic power but only by instituting those required checks & balances that would clear their own good name.
Regards,
Jim
An historical role of intellectuals and academics has been to “name things.” They have been abusing that role for some time now. When the most powerful man in the world, an intellectual by all standards, defends his sex crimes by arguing what “is” is, we have definitely crossed the Rubicon.
And is your theory that only an elite class gets to go to these schools? Can you define the class? I do not believe there’s any real barrier standing between any bright young American and Yale, if he or she is talented enough and that’s what he or she wants badly enough.
We love our country therefore we limit our government.
The class is not one of birth, but one of station. People fall over themselves to get into the ruling class. Look at the Clintons.
Do you read VDH? I think his last post on NRO sums up how the ruling elite don’t have to deal with the day to day problems of ordinary Americans.
I understand that you do not either, since you don’t live here, so I am not sure you are grasping the general feeling that there is a “them” who call the shots. The Banks shuddered, but only the little guy got burnt, while “too big to fail” saved the Wolves of Wall Street. The elite don’t pay their taxes and don’t get in trouble; Ma and Pa America go to prison. The elite have armed guards, while the rank and file Americans have to fight to keep their guns. While low skilled Americans lose their jobs to immigrants, the elite get cheaper lawn care.
Somehow, people are elected to office, which pays less than $100k a year, and come out multi-millionaries. Something is going on, where the DC crowd makes out and the rest of us are screwed.
No, it’s not worth serious thought. If the latter is as bad or worse than the former then why not support the former? This is how big government is sold, by making private citizens out to be the real oppressors. Those who abhor tyranny cannot let this meme burrow its way into our heads.
As to Europe, I think there is indeed a “them” – unelected and unaccountable EU elites. As to the US, I am not at all sure I trust the electronic voting process. If the Dems in Chicago could steal elections back when with paper ballots, I have no doubt it can be done with opaque and impermanent electronic ones. I suspect it can even be done remotely. “Who votes is nothing. Who counts the votes is everything…”
It’s a very hard concept to explain. It doesn’t make intuitive sense. Think about how you’d explain it to someone who doesn’t understand: You love your country but hate its government? What’s wrong with your government? What is your country?
And just try explaining that your country’s a compact to limit your government. Despite what your politicians keep saying.
It’s American Zen.
Q: What is the sound of one government bureaucrat whimpering?
A: A good start.
Within the context of that statement please describe the rise of Barack Obama. What great idea of his carried him to his lofty heights? Or was he groomed and protected? And if it was the latter and not the former that got him to the Oval Office, who did the grooming and protecting?
This “reasonably transparent process” of which you speak is what? Privacy laws that shield grades and dissertations? And laws that allow public tax supported institutions to shield people provided they carry the correct political positions?
The question assumes that the government cannot be an enemy of the people. A historian of your intelligence should know better.
I don’t see the dichotomy. My government is not my country.
I get incredibly annoyed when I hear otherwise intelligent people talk about the Presidential election and how we’re selecting someone to “run the country”. No, we’re selecting someone to run the Government (and only the executive branch, at that). I’d like to believe there’s still a difference. Otherwise we really are into Mussolini-style facism – “Everything within the State, nothing outside the State”.
My country is an idea the governments are “instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”
Dumb voters.
You’re confirming not disproving my theory: Any dumb schmendrick can become president in the US. He doesn’t need great ideas.
No one.
You think that if people had read his dissertation, they wouldn’t have voted for him? I don’t.
Which ones do you mean?
Do you think this is objectively true, or just a tradition?
I do know better. I’m pointing out that most people don’t, oddly.
It’s true that there’s an unelected bureaucracy, which is normal: We don’t elect our bureaucracy. It’s not true that there are no meaningful elections in Europe. At all.
I hate this. Voters aren’t dumb. They aren’t low-information. They don’t need to be fixed.
This is like the owner of a boutique who never sells anything complaining that the women who walk into her shop have no style.
Maybe it isn’t the voter.
Claire,
The EU parliament can’t initiate a bill!! I think Assad in Syria has a parliament like that. They call it a rubber stamp. Of course, that’s kind of old technology the rubber stamp. Maybe they should call it a read-only file permission. They can read the bill they just can’t write the bill.
Regards,
Jim
I wouldn’t pressure the companies. I would tell the county and township people something like this:
“It’s good to see all our Bedford Township roads getting resurfaced. The crews are doing a fine job, and it’s great that you’re keeping us informed day-to-day about where the crews will be working.
“But I wish you would use something other than Facebook to do it. I don’t use Facebook. I used to but I quit when it started to support human rights violations in Russia. And now Facebook is taking partisan political sides here in the United States, promoting some views and cutting off others. This might be technically legal, but I don’t think our county and township governments should work with companies that do not respect freedom of speech. I realize it might cost a bit more, and I appreciate that you have saved us all a lot of money by reforming the county road commission, but maybe you could pay a local web developer to help you replace Facebook with some other notification system on your web site.”
Perhaps the idea of an unelected bureaucracy is normal. What it has become in practice is not normal in the sense in which executive offices were intended. It is dictatorial and unaccountable. That this has come to be regarded as normal is a big part of the problem.
Really? Is censorship of speech the thing that resulted in peace and stability?