The American First Amendment -- Risk Tradeoffs

As an American traveling throughout the world for many years, I’m asked frequently about our freewheeling lack of speech restrictions in my home country. How can we allow political vitriol, misleading facts, and hatred to be given a hearing?

These rights are protected by the First Amendment in our Constitution’s Bill of Rights. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

That “freedom of speech” is not absolute. The general principle the courts have settled on is to limit speech only when there is direct and imminent of public harm caused directly by the speech in question.  One cannot yell “Fire!” in a crowded theatre, for example, without repercussions. There are laws against maliciously publishing lies (libel) or false public speeches (slander) to injure another’s reputation. You cannot make threats to kill someone or bomb government buildings, as these pose a clear and present danger to the public.

But that leaves a lot of room, as is obvious when reading our newspapers, watching our television coverage, or perusing Twitter or Facebook.

Mind you, sometimes freedom of speech is more of a legal right than a practical one.  American courts have consistently held that private publications do not have to provide the same freedoms that the public does.  And even in public, the government does not condone all speech equally.  

We take a very different approach than most other countries.  It is taken for granted elsewhere that some forms of speech may be prohibited. Criticism of the monarchy in Thailand. Holocaust denial in Germany. “Subversion” in Hong Kong, which appears to mean whatever the government in Beijing wants it to mean. “Suspicion of causing harassment, alarm or distress” in the United Kingdom. And those are some of the more open regimes in the world, according to the World Press Freedom Index.

The story in countries like Russia is quite different, as the treatment of Alexei Navalny on his reentry to the country has made clear. He is currently being held on defamation charges, in addition to embezzlement charges already declared invalid by the European Court of Human Rights. With Navalny being a well-known political opponent of Russia’s current leadership, it is obvious that Russia is using speech restrictions to shut down dissent against the government. Political advocacy, of a legitimate candidate, has become hate speech. Protest has become sedition.  Recent events in Myanmar only highlight the problems with this approach.

So let’s look at risk principles and the concept of freedom of speech. Where are the downsides to both sides, and how likely are they?

On the side of restrictive speech laws are an immediate benefit: those individuals injured by the objectionable speech have a less objectionable environment. Much of current "hate speech" law attempts to provide this protection.  Note that hate speech law does not necessary change the underlying prejudices or accusations, but the appearance of support for hateful positions is removed.  In this environment, the risk for making vitriolic speech has increased - a good for individuals.  But the risk of speech laws being misused to stifle dissenting opinion likewise becomes higher - a risk for society.

Many speech restriction laws are well-meaning.  But the risks involved are quite apparent to many Americans who recall the excesses of the Red Scare and McCarthyism. If one type of speech is suppressed today, what kind of political speech will be added to the list tomorrow?  And will the government ultimately be more or less responsible and accountable to its citizens in such an environment?

The WPI Freedom Index cited above, by the way, does not rate America at the top of the list, despite its First Amendment protections.  The reasons are complex, but they boil down to America not always protecting our reporters as well from political interference as we should, accelerated by social media pressure on speech and prosecution of leakers of government information.  In short: the government is leaning on speech it doesn't like.  The cure for that, in this American's view, is more speech, not less of it.  We'll stick with our open speech system, hopefully, with all the chaos it entails, because in the American view, the only safe way to deal with speech you don't like is more and better speech.