Free speech in America and Europe

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Free speech in America and Europe

Postby cmsellers » Thu Nov 15, 2018 2:41 am

So I've been meaning to make a thread on this for awhile, but given that Marc recently made a thread which I can't respond to without basically saying "this is 100% predictable given European attitudes towards free expression," which would and risk derailing the thread, I think that the time has come. Americans and the rest of the world, but especially Europe, tend to have very different attitudes when it comes to free speech. Americans are generally disturbed by the lack of speech protections in other countries, while Europeans are annoyed by our criticism of their laws, which they believe ignores the difference in historical context.

Debates over US and European speech laws tend to center around "hate speech," however it is not as if the only difference between US and European laws is an exception for hate speech. To be clear, I think that hate speech laws are problematic, and I will get to that, however I think they are a symptom of the problem (and yes, I do see it as a problem), rather than the cause. European countries don't just have hate speech exceptions, they also often have other exceptions the US doesn't have, and the exceptions we all have tend to be broader in Europe. Several European countries have exceptions for blasphemy and lese-majeste, while defamation laws tend to be stronger and fair use exceptions to copyright weaker in Europe than in the US. And there are other differences as well, my post would be far too long if I listed all of the examples I knew and I'm sure there are far more which I don't.

The idea of free speech originated in parliamentary privilege in England, the idea being that representative government requires a free exchange of ideas, and that is still the justification used in countries that recognize that right. In Europe, in Canada, in Australia, and even in the US, governments have tended to take the view that only ideas worthy of considering are worthy of protection. And in the US, as recently as a century ago, the Supreme Court had tended to concur. The difference is that since that time, the Supreme Court has increasingly taken the view that the government has no business determining which ideas are worthy of protection. In the US, we have come to see free speech as valuable in itself, because it protects unpopular ideas which may still nonetheless be born out by history, and because allowing the government to decide which ideas merit censorship tends to favor the powerful.

In the US, the government tried to prohibit abolitionist literature and tried to prohibit resistance to World War I, fringe ideas at the time that most people today would recognize as justified. The US government tried to restrict criticism of the Vietnam War, discussion of homosexuality, and investigation of Watergate. In the US, liberals and conservatives alike (and especially libertarians), generally recognize that if we give the government the power to restrict meritless or divisive speech, it will at some point restrict our speech, or at least the speech of people advocating positions we care about. And so we have increasingly resisted any governmental restrictions on speech, and the Supreme Court has increasingly narrowed the scope of existing exceptions, while refusing to create new ones.

The last exception created by the Court was New York v. Ferber in 1982, which carved out an exception for depictions of sexual activity involving children. Meanwhile, other exceptions have been considerably narrowed, rendering obscenity and fighting words dead letters. At this point, there are basically three enforceable criminal exceptions to noncommercial speech protection: 1. Incitement to violence, 2. True threats, and 3. child pornography. The US still has somewhat weaker commercial speech protections, with the government allowed to ban things like false advertising and marketing tobacco to minors. We also allow several torts against unprotected speech, including defamation, invasion of privacy, and copyright infringement. With both our commercial speech exceptions and torts though, these exceptions are narrower than they in most or all European countries.

Defenders of the European approach to speech point out that circumstances in the US and Europe are different, however the US is, AFAIK, alone in the approach we take to speech. No other country has tried it. The Dutch seemed at one point like they might be on a similar path, but under EU regulations they have come more in line with the rest of Europe. The most common exception that comes up is of course "hate speech": Europeans, and Canadians, and Aussies, generally seem to take the view that hate speech is meritless speech which does not require protection, and moreover the emotional harm it causes to the targets means it probably shouldn't be protected.

I do not believe that it is possible to carve out a hate speech exception and otherwise follow the US approach, because hate speech restrictions govern which opinions are permissible, something which . Opposing groups can and do argue that the criticism of each other is hate speech. Some religious organizations make claims of hate speech against apostates, feminists, gay rights activists, and other critics; TERFs make the same claim against trans activists. Actual, fallible humans need to evaluate their claims, and tend to do so with a "squeaky wheel gets the grease" approach.

But as I have said, European views on hate speech are a symptom of a larger problem. Outside the US, speech may be nominally called a right, but it is still effectively considered a privilege, it is dependent on the speech having merit, and can be restricted if it inflicts emotional harm which outweighs any merit the government determines it has. We see this with the gag orders the UK sometimes issues, we see it with the British Parliament using copyright to block satire. We see it too with copyright, where the French notion that authors have a moral right to their work is leading to expansions of copyright and the shrinking of fair use across Europe.

Restrictions on speech require government action, and by their nature they tend to suppress the views of the politically marginalized more than the views of the political powerful and well-connected. With restrictions on blasphemy and lese-majeste, this is the goal. With the French view of copyright and the British view of defamation, this has been the practical effect. Hate speech is a weird exception which is nominally supposed to favor the powerless, but even there, it benefits vocal and well-connected minorities such as orthodox Muslims over less powerful minorities such as Ahmadis, Bahais, and ex-Muslims. But even if you think hate speech laws are worth having, is it really worth an approach to speech that allows the government decide which views are legitimate and which are beyond the pale?
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Re: Free speech in America and Europe

Postby ftl » Thu Nov 15, 2018 5:50 am

So, the thing that prompted this seems to be making a mountain out of a molehill! Some guys partied with some asshole slogans, someone else leaked pictures of them.

The legal system literally isn't involved in any way in that case, so the difference in laws didn't have any effect. So far the only thing that's happened there is a student union officer got kicked out of his post for leaking the photos. What exactly is the thing going on that warrants a big moral outrage about freedom of speech?
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Re: Free speech in America and Europe

Postby cmsellers » Thu Nov 15, 2018 5:56 am

That article isn't the reason I wrote this. It's just the reason I wrote it now. The question of whether Americans place too high a value on free speech has come up multiple times before, we had a thread on the GDPR, and I think we had a thread on hate speech at one point, but we have never had an actual thread on why American values are different from Europe in this regard. Also, what about my post do you think constitutes "big moral outrage"?
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Re: Free speech in America and Europe

Postby ftl » Thu Nov 15, 2018 5:29 pm

cmsellers wrote: Also, what about my post do you think constitutes "big moral outrage"?


Mostly the length, and you seemed to be pretty passionate about it.

I'd join in the discussion in more depth, but I don't know whether it even makes sense to talk about the "European" model of free speech. I have some comments but they're only about the UK, whose history and laws I know a little better. Europe is 50 different countries, which span from liberal democracies to dictatorships, so nothing I could say about a "European" free speech model could possibly be right across the board. I know literally nothing about speech laws/rights in Switzerland or Slovakia or Spain.

I guess I can write up some thoughts on a UK/US comparison later today, though! Need to think about it a bit more.
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Re: Free speech in America and Europe

Postby cmsellers » Thu Nov 15, 2018 11:47 pm

I am passionate about it, but passion is not the same as outrage. I don't like the views that most of the world take towards speech, and I get annoyed when Europeans say that I don't understand the unique context in which their hate speech laws arose. The US has had a far more turbulent political history than many countries that have hate speech laws, and while we have never tried hate speech laws specifically, we have tried the European approach towards free speech, which tries to consider the usefulness of a given utterance and balance it against other "rights," both individual and collective. In the US, we do balance speech against some other considerations, but with a strong deference towards not restricting speech and a view to shrinking exceptions rather than expanding them, and generally without considering whether the content of an utterance has merit. We have found that when you have humans judging which speech is acceptable, what is acceptable tends to reflect the opinions of the powerful, the vocal, the well-connected, and to deprive marginalized views of a peaceful outlet.

European countries do have a patchwork of different laws, and when I say "European model" I really mean "Western, non-US model." All Western democracies initially followed more or less the same model, in which speech was contingent on being useful, but the US began moving in the direction of treating speech as a paramount right which can be restricted only in exceptional circumstances a century ago. More recently, the EU has begun trying to harmonize regulations across the EU, including the GDPR, various attempts at copyright harmonization, and a ruling from its human rights tribunal that expressing blasphemous opinions is not a human right. The effect has been a gradual net degradation of speech rights across the EU, however it is not clear to me whether the EU is moving in a drastically more restricted direction on speech, or whether we are simply seeing the natural expansion of rules which inevitably follows from bureaucracy. I also cannot tell whether things like Iceland banning pornography are part of a trend or a one-off. But for now, the European approach to speech seems close to the historical US approach.
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Re: Free speech in America and Europe

Postby Piter Lauchy » Fri Nov 16, 2018 2:45 pm

Without wanting to get into the larger discussion at the moment, there is at least one instance of the US model of free speech that I find problematic:

"Police reports that the alleged child rapist is called John Johnson. John Johnson, everyone! John Johnson was the alleged monster! Here he his! Look at thim. That's John Johnson, alleged child rapist!
Uh, guys? Why are you forming a mob? We said 'alleged'. Ah great, now you've gone and killed him. Totally not our fault though, we said 'alleged'.
Reports just came in claiming that John Johnson was innocent after all and the true alleged perpetrator was Jack Jackson. Jack Jackson, everyone!"

In Germany, it's not allowed for media to identify a suspect. No full name, no picture. I think that at least this is a sensible restriction of free speech.
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Re: Free speech in America and Europe

Postby cmsellers » Fri Nov 16, 2018 3:19 pm

Piter, that could be achieved by not letting police give suspect names to the media. We already have that rule for juvenile suspects in most cases. We could easily expand it to all suspects without carving out new free speech exceptions of we wanted to, but this is an issue with how the US handles criminal justice, not how the US handles speech.
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Re: Free speech in America and Europe

Postby ftl » Sun Nov 18, 2018 7:56 am

I haven't been able to come up with a strong opinion on this, because I think the differences are, to me, not significant enough to feel very strongly about.

I certainly appreciate the US's written-in-constitution speech rights. I'm advocating for any big changes to them or anything. On the other hand, the real thing that matters is the interpretation - I also like that false advertising, fraud, and child pornography aren't counted as "protected speech". But appreciating that makes it pretty clear to me that it's not some sort of fundamental right that matters to me, it's that it gets a reasonable interpretation and reasonable exceptions.

And when thinking about it, what I really care about most is freedom to oppose the government. If it were allowable for the government to regulate criticism of itself, or to give outlets that support its views preferential treatment, that would significantly harm democracy. And I haven't seen that as a fundamental difference between the US and western Europe. The UK has (IMO) dumb libel laws, but as far as I can tell they're not a threat to UK democracy. Germany bans supporting Nazis and Hitler, and as far as I can tell its democracy is fine.
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Re: Free speech in America and Europe

Postby cmsellers » Sun Nov 18, 2018 5:02 pm

That's the thing though. You're taking the position that most of Europe takes: "as long as we allow legitimate political discourse (ie criticism of the government), I don't see the issue." But even autocracies agree with this. The government of Vietnam encourages newspapers to report on corruption, but not things that will undermine the government. Pakistan allows criticism of the government but not "blasphemy." And my point is that this attitude towards speech is dangerous in itself, even if it proves not to be a slippery slope towards further restrictions, because it assumes the regulators will make the right calls, and because it ignores the cost of merely having these restrictions on the books.

The Saudis have used British libel laws to quash criticism in the UK. British-American journalist Greg Palast has been a strong critic of British libel laws, and John Oliver and Matt Ridley have also criticized the dangers that speech restrictions pose to speech in the UK.

And it's not just libel. The UK allows pretty strong gag orders on a range of subjects, and unlike in the US, those gag orders can include prior restraint. What has been suppressed that we don't know about? Someone shared a reddit post with me recently in which someone claimed to be a young minor in the UK forced by the government to have an abortion for her own health against the wishes of both her and her parents, and with British newspapers under a gag order not to report on it for her own privacy, and asking American papers to pick it up. I lean pretty heavily towards that story being a troll post, but because Britain allows prior restraint, because Britain allows gag order like that, that part of the story is entirely plausible and I can't 100% dismiss it.

But it goes beyond what people have attempted to suppress, it goes beyond what may have been successfully suppressed. We don't know what hasn't been reported because of chilling effects, even in the absence of a gag order, and that's at least as great a danger as SLAPP lawsuits and government censorship.

I would also dispute your claim that democracy in the UK and Germany is healthy, but since I think the issue is mainly forced consensus on immigration and the EU rather than speech restrictions, and since I can't point that out without acknowledging that we have issues in the US too (though I think for different proximate causes, but with the same ultimate root in an anti-globalization backlash), and since it isn't my main point, I won't dwell on it too much. I will, however, point out that the far-right AfD has been growing every election and is now the third-largest party in Germany, which shows that banning Holocaust denial and Nazi imagery does nothing to prevent the resurgence of right-wing authoritarianism.
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Re: Free speech in America and Europe

Postby ftl » Tue Nov 20, 2018 9:50 pm

Right, by "democracy is healthy" I really don't mean that "all is right with the world", either there or here. I was just meaning that there isn't an issue with speech suppression being used for political gain. As far as I know, at least, I could well be wrong. I don't think democracy is particularly healthy here either in a broad sense, but also not because of speech suppression.

Anyway, but I think you also agree that there exist exceptions that are reasonable! Fraud, false advertising, swatting... heck, the US also has defamation laws too. I guess I just never quite got what the fundamental philosophical difference is between those exceptions and others which I see as obviously unreasonable. Like, sure, I completely agree that anti-blasphemy laws are bad, but anti-false-advertising laws are fine, but I can't figure out a clear red line that makes it obvious that one is bad and the other isn't, other than the general observation that anti-blasphemy laws tend to be used to quash dissent and go after people just trying to peacefully live their life, whereas false advertising laws don't.

Or maybe let's be more specific - libel. The US has anti-defamation laws, the UK has anti-defamation laws, the UK's are notorious bullshit as you've pointed out and as far as I know the US's aren't. But I don't know of a way to justify that from an underlying perspective of "the US's laws don't violate some fundamental right whereas the UK's do" - to me it seems that way mostly from looking at the effects, that the UK's laws end up convicting people who in my opinion have done nothing wrong and the US's tend not to.
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Re: Free speech in America and Europe

Postby cmsellers » Wed Nov 21, 2018 5:34 am

There's no bright line, and I believe that trying to determine policy from hard-line first principles leads to ridiculous outcomes, however I think that there are two key differences between the US and the rest of the world. The first is that the US has generally taken existing exceptions and asked "Do we really need these? And if so, do they need to be as broad as they are?" The second is that in nearly all of the exceptions we have kept, there are factors involved which take them beyond mere speech. In nearly every case, there is a harmful effect of producing the speech which is either an unavoidable byproduct against a specific individual, or the harmful effect of the speech, typically by the illocutionary force, is the intent, by the very definition of the term.

In child pornography, false police reports not involving swatting, negligent case of defamation, and arguably copyright infringement you cause foreseeable harm to a specific individual in order to create the speech. In every other case I can think of, whether criminal or tort, commercial or noncommercial, you engage in a speech act with causing a non-speech harm as the goal. So with false advertising, you are trying to take someone's money to benefit yourself, and they would not give you your money if not for the information asymmetry: the harm is the goal. The harm is also the goal for swatting, as well as harassment, incitement, and true threats. Notably swatting and incitement prompt physical harm against a specific party or parties, while harassment and true threats imply it in such a way that the individual has reason to fear for their physical safety.

Here, I want to pre-emptively address two related arguments that I see repeatedly for banning hate speech, blasphemy, and pornography. The first is that the offense caused by such speech is reason to ban it in itself, while more clever supporters of such restrictions will argue that whatever the intent may be, the effects of hate speech, blasphemy, and pornography are to degrade society and/or to make minority groups, religious groups, and women feel unsafe in the same way as harassment and true threats. The evidence for this latter point is usually questionable at best, but let's assume for the sake of argument it were 100% demonstrated that criticizing Islam led to more hate crimes and pornography led to more rapes. The fact remains that in each of these cases, the intent of the speaker is to communicate an idea, and allowing the actions of third parties to restrict speech is very similar to the Heckler's Veto, and just as dangerous for the same reasons. It allows ideas to be excised from the public debate because of the harm caused by third parties and leaves no acceptable way for the speaker to express the idea they wish to express.

We are looking at the difference between criminalizing speech intended to inflict a physical or fiscal harm and criminalizing whole ideas because they might cause emotional harm or might inspire third parties to cause actual harm. The idea that some lines of discourse can be shut down because they incidentally inflict emotional harm or may inspire other people to inflict actual harm is a dangerous one. It's essentially the difference between TCS having a "no personal attacks" policy and many sites banning political discussions entirely because they tend to upset people and lead to bad behavior, but it's a lot harder to change your citizenship than to leave a forum.
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Re: Free speech in America and Europe

Postby Piter Lauchy » Wed Nov 28, 2018 2:02 pm

cmsellers wrote:I will, however, point out that the far-right AfD has been growing every election and is now the third-largest party in Germany, which shows that banning Holocaust denial and Nazi imagery does nothing to prevent the resurgence of right-wing authoritarianism.

I'm not sure whether that was the (only) main goal of that ban, though.
Imagine living through one of the absolute worst experiences a human can possibly have and then seeing flags etc. celebrating the regime responsible for that experience. I'm usually not okay with banning stuff because it "offends" people, but extreme cases like this need to be examined on their own, independent from any core principle.
Whether the ban was about victim protection or not, it made things a bit easier for the survivors of that hell and I, for one, am okay with this. I mean, in what universe is the idea of a master race and the eradication of all lesser races worth discussing anyway? Obviously, one person or government can't possibly decide what's worth discussing and what isn't, but I can't fathom a single benefit of allowing that idea to waste our time by giving it attention, regardless of viewpoint or political leaning.

One could argue that this sets a dangerous precedent, but as far as I know, a ban of this scale hasn't happened since then and I have no reason to believe it will.

You argued in favour of the erasure of that artwork on Stone Mountain. How is this different, at its core?

I will admit that the ban has been taken to hysterical extremes in some cases. Nazi imagery is allowed in works of art or media with a historical significance, but since video games aren't considered art they can't show them here.
I once got in trouble at school for wearing a button with a crossed out swastika when I was a radically cool teenager.
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Re: Free speech in America and Europe

Postby cmsellers » Thu Nov 29, 2018 4:39 am

Your question fails to distinguish between the right of individuals to say what they will on any subject of public interest without fear of prosecution and the idea that any and all speech is worthy of maintaining in its original medium for all of eternity. There's a rather substantial difference between erasing a giant monument on government-owned property and sending people to prison for using swastikas.

Destroying Stone Mountain is more akin to efforts by the German government to destroy or close to the public sites which are only notable because of Nazi associations and which risk becoming or have become shrines to Neo-Nazism, and I am generally fine with that. I think that the Führerbunker is interesting enough in its own right (it would be interesting whether Nazis had built it or not) that I would have preferred keeping it around, though perhaps with limited access to prevent it becoming a shrine or tacky tourist attraction, but I'm not particularly upset that it was destroyed. I think that Stone Mountain probably falls between the Führerbunker and the other German sites on that scale: it is inherently interesting in its own right, but also only exists as a shrine to racism, and it defaced a site that was interesting in its own right.
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