As someone who has survived two very different dictatorships, hearing Americans and Europeans debate free speech always feels a little quaint. They argue about subtleties of law and meaning that are irrelevant to the half of the world’s population still living under authoritarianism, where speech is controlled by the regime.
This does not mean that these arguments are not important, even vital, in the free world, only that there should be context — and appreciation for the luxury of being able to say what you want without fearing government retaliation, which is true in almost every case. It’s also a warning to be careful what you ask for. If you’re asking for greater government oversight of speech, or more legal recourse that might limit or chill speech, it can end in places you did not want and did not expect.
One of the truisms of all governments is that power given is rarely returned, and never without a fight. People always forget this when their political side is in charge, and doing things they like. If there isn’t oversight and limits on the politicians you favor, those checks won’t be there on the politicians you don’t like.
For example, the change of administration in the United States, from Trump to Biden, is a relatively dramatic shift in policy and rhetoric. Biden immediately got to work undoing dozens of Trump actions, many of which were themselves reversals of Obama policies. This seems normal enough, but these “executive orders”, as they are called, are not deliberated pieces of legislation, passed by the Congress into law. They can, and often will, simply be undone immediately once again by the next president.
This violent back and forth, without the negotiations and compromises required in legislation, often leads to overreaction and unforeseen consequences, even with the best intentions. Parliamentary debate can be terribly slow, but that is also one of its virtues. As the saying goes, few good ideas come out of committees, but many bad ideas have died there!
Public and private forces defining the rules in democracies
Returning to free speech, this is one area where handing too much power to the government, especially the executive, is dangerous. We want to fight disinformation and misinformation, but it takes a lot of careful work simply to define those terms, let alone implement action that monitors and regulates them. If you think free speech should be absolute, perhaps you don’t remember how bad email spam used to be, or what social media looks like with no moderation or filtering by the companies that run them.
Instead of relying on the state to define everything, most systems in the democratic world rely on a combination of public and private forces and interest, pushing and pulling against each other. The foundation of this adversarial system is the people, who play for both teams at the same time. They are voters and constituents, at least in a democracy. They want their representatives and leaders to serve their interests, which, we hope, are also for the greater good.
The people are also consumers, customers, employees, and business owners. In that aspect, they want better services, cheaper and faster and more user-friendly. This creates a triangle of power that is always shifting as new technology, new trends, and new laws shape our society. Social media changed everything because it’s a two-way street, turning everyone into a “publisher” with global reach. But we cannot apply the laws of publishing to every individual, hence the ongoing debate about accountability.
“Incitement to violence cannot be defended”
Let’s look at the biggest case in history for the private version of freedom of speech —moderation and deplatforming. When Twitter blocked, and then permanently banned, the account of Donald Trump when he was still the president of the United States, it was like dropping a bomb. Everyone had a strong opinion about if it was right, and even if it was legal (it clearly was). My own view is that incitement to violence cannot be defended, and so the ban was warranted. But the key is that it was within Twitter’s rights as a private company to act in its interests and those of its customers. And who defines those interests? Well, Twitter. That’s how the private system works.
Ironically, many of Trump’s defenders compared Twitter’s ban to “Communist China” or the Soviet Union. Except it’s exactly the opposite! In authoritarian regimes, the government shuts down accounts or entire companies that displease the state. A private company turning off the account of a public official could never happen in a dictatorship. You may argue that social media companies have too much power and need to be regulated more, but don’t call it tyranny unless you wish to sound foolish.
German Chancellor Angela Merkel said she found the ban troubling, a statement that was quickly picked up by Trump’s defenders. But they would not like her solution, one more common in Europe, of strong regulations on speech in the hands of the state. Some of the statements by Trump and his loyalists would have qualified as hate speech or incitement in Germany and other places, resulting in a ban far more powerful than just Twitter.
Meanwhile, in the US, Trump is free to post lies about the election elsewhere, although there are other risks. After many Republicans and supporters made false accusations about the election being rigged, including by hacked or manipulated voting machines, the companies that makes those machines threatened to sue any individual or media outlet spreading these claims.
Lo and behold, they largely shut up about it, even issuing retractions, knowing they were unable to provide any evidence for slandering the company’s product and its integrity—which also isn’t protected speech. It’s a very American solution, lawsuits and private moderation, but it’s all part of the ever-shifting triangle.
Lastly, it’s important to realize that there’s no perfect equilibrium where everyone is happy, or equally unhappy. Our laws evolve with our technology, unevenly and unpredictably. It can be frustrating, but generally we move in the right direction as long as we keep our oars in the water. For most of us — the customers, voters, and citizens — that means staying involved, staying informed, and letting the companies and politicians know that we won’t be ignored.