By Daniel Payne
The French penal code criminalizes “defamation” of people based on “their membership or non-membership, real or supposed, of an ethnic group, nation, race or religion;” in Britain the police can investigate you for criticizing Muslims; in Ireland they have something called the “Prohibition of Incitement to Hatred Act,” which prohibits “inciting” “hatred” against anyone based on, among other factors, “membership [in] the travelling community” and “sexual orientation” (Ireland also forbids speech that “undermine[s] public order or morality or the authority of the State”). Even our neighbor to the north, Canada, forbids people from “incit[ing] hatred against any identifiable group.”
America is not like that: in the United States, you can incite hatred against a gay gypsy Muslim bureaucrat, even specifically becausehe is a gay gypsy Muslim bureaucrat, and you will not be thrown in jail. In America you can say just about any offensive thing imaginable, directed at just about any group or person imaginable, and you’ll be okay. Add to that the strong protections for political speech that statute and Supreme Court precedent have established, and America is almost unique among the nations of the world in terms of freedom of expression. We have it good.
But that might not always be the case. In fact in the very near future American free speech may be sharply curtailed. It is not a sure thing—Supreme Court precedent regarding the First Amendment is robust enough to present would-be censors with something of a challenge—but nevertheless there is a good chance that American enemies of American free speech will shortly mount a sustained and eventually successful effort to drastically reduce American speech freedoms.
Who are these enemies? There are three of them: Hillary Clinton (backed by a Democratic Party that is rabidly anti-free speech), Donald Trump (unchallenged by a weak and useless Republican Party), and, most tragically, the American people themselves.
With the possible exceptions of John Adams and Woodrow Wilson, there might never be a president more hostile to freedom of speech than Hillary Rodham Clinton. Clinton has promised, if elected, to introduce a constitutional amendment within her first month in office that would effectively repeal the First Amendment by overturning the Supreme Court’s Citizens United v FEC decision from 2010.
Very simply, Citizens United ruled that Americans do not lose their freedom of speech rights when they band together in corporate form and under the auspices of labor unions and other types of organizations. Practically speaking, this was an uncontroversial and obvious affirmation of American First Amendment rights. But Hillary Clinton has set herself up against this ruling as if it were the Black Death, claiming her litmus test for nominating Supreme Court justices is if they will vote to overturn Citizens United and thus make it more difficult for Americans to speak freely and openly.
Clinton actually has a long history of anti-free speech positions, so in a sense this is unsurprising. But now she is poised to become president of the United States, and with that bully pulpit—and the power of the executive order—you can be sure her avaricious, relentless desire to curtail free speech will be a potent threat to our precious First Amendment freedoms.
You can be equally certain the Democratic Party will be happy to help her out. The Democratic platform not only calls for overturning Citizens United but also calls upon the Justice Department to “investigate allegations of corporate fraud” of fossil fuel companies “accused of misleading shareholders” on “the scientific reality of climate change.” This is a creative way of calling on government to prosecute skeptics of global warming hysteria.
In addition, the DNC calls upon Democrats to “condemn hate speech that creates a fertile climate for violence.” It is essentially guaranteed that, within a few years’ time, the “condemnation” of “hate speech” will progress to demands for an outright prohibition. Progressives in Europe have already done it; progressives in America are assuredly not far behind.
You might think the Republican nominee for president would stand as a counterweight to the Democratic nominee’s censorious tendencies. You would be wrong. Trump himself has come out against super PACs, which are simply coalitions of American citizens who have banded together to voice their political opinions. Trump has also vowed to “open up” libel laws in order to silence his critics.
Lest you think this is an empty threat, it’s important to note Trump has already admitted to using libel laws to silence his critics. He also called for “closing [the] Internet up in some way” to combat terrorism, while dismissing those who would be concerned about freedom of speech as “foolish people.”
Would the GOP stand against Trump’s demonstrable hostility to the First Amendment? Not likely. Much of the Republican establishment has already proven itself reluctant to challenge Trump in any substantive way. Trump’s obvious antipathy to freedom of speech, coupled with his strongman ambitions and lack of resistance from an emasculated GOP, could pose a serious if not existential threat to American freedom of expression.
The American People
Surely, even if our corrupt and power-hungry elite ruling class opposes freedom of speech, the American people will resist any real efforts to curtail the First Amendment, right? Not so fast. There are genuinely distressing signs that the culture of American free speech is as endangered as the policy.
Some poll numbers suggest as much: two-thirds of Americans, for instance, think people who engage in “hate speech” are “more dangerous” than the people who would censor it. Among younger Americans—millennials—the polls indicate a staggering opposition to freedom of speech: out of 800 students polled at colleges across the country, more than a third believed the First Amendment does not protect “hate speech,” with a third also claiming the First Amendment is “outdated;” more than half believe colleges should have speech codes to police the speech of students and professors.
Forty percent of millennials, meanwhile, think government should be able to censor “offensive statements about minorities.” Indeed, millennials appear to be the most censorious generation alive. As older generations die off or become less politically active, we can assume that more and more anti-free speech millennials will make up a larger and larger share of the electorate.
All of which is to say: if we are worried about the anti-free speech ambitions of our two presidential candidates and the parties they represent, we should also be concerned about the American body politic, a substantial percentage of which is greatly inclined to censor “offensive” speech. A generation so inclined to muzzle its fellow Americans could pose an existential threat to the First Amendment.
Fight for the Right to Speak Freely
So how do First Amendment-loving Americans fight against this rising tide of illiberal anti-speech hostility? The solution is actually quite simple: we must take an absolutist zero-tolerance position regarding censorship and speech policing. In the same way that the National Rifle Association is relentless in fighting the curtailing of Second Amendment rights, Americans must relentlessly protect First Amendment rights.
The American tradition of free speech is very strong and well-established. But that doesn’t mean it can’t be swept away.
This means fighting against efforts to overturn Citizens United (and fighting more broadly against any efforts to censor and police political speech); combating speech codes on college campuses and elsewhere; working tirelessly against the wannabe-tyranny of people like Trump and platforms like that of the Democratic Party; and fighting vigilantly for the right of all Americans to say what they what, about what they want, in whatever way they choose to do so.
This does not mean you have to defend things like libel or other knowingly false and slanderous statements. It simply means you must fight for the precious free speech rights of every American citizen against the growing effort to criminalize those rights. (It might also help if you familiarized yourself with the Supreme Court rulings on free speech. Knowledge can be an invaluable tool when fighting against illiberalism and authoritarianism.)
These concerns are not academic or theoretical. As much of the rest of the world proves, governments are usually extremely willing to silence and censor their citizens, and too often the citizenry is willing to lay down and take it. The American tradition of free speech is very strong and well-established. But that doesn’t mean it can’t be swept away. It is up to all of us—as American citizens and freeborn men and women—to guard against these encroachments on our God-given liberties, and to ensure that the invaluable American free speech regime continues as long as does the American Experiment.
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