Freedom of Expression, The United States’ Last Source of Greatness

There’s much to criticize in American politics, says honorary professor André Liebich. Except for one admirable thing: the First Amendment of the Constitution consecrated in the freedom of expression. In Europe, censorship is gaining ground.

There is plenty in the United States to criticize and oppose: growing inequality; minimum wage stagnation; the dizzying spike in higher incomes; the absence of a social safety net for the poor, weak and sick; the imperialism that wages merciless wars against less fortunate countries. But if there’s one admirable aspect of the United States, it’s the first of the 10 amendments, which were added as a declaration of rights to the American Constitution in 1791. According to this amendment, any restrictions on the freedom of speech or of the press, or the right to peaceful assembly, are forbidden.

The American Supreme Court’s interpretation of this right has varied. In 1969, the Court ruled that the act of burning draft cards to protest the Vietnam War didn’t deserve freedom of speech protections. Twenty years later, the court determined that burning an American flag is a legitimate form of protest. More recently, a controversial decree from the Supreme Court removed limitations restricting financial contributions to electoral campaigns, thereby increasing the role of money in the democratic process. The largest civil liberty organization in the U.S., the ACLU, even defended American Nazis’ right to protest in a Jewish neighborhood, not because of sympathy for the Nazis, but in the name of the First Amendment.

Freedom of Speech and Respect for Minorities

This emotional attachment to liberties is explained by the high regard in which Americans hold their Constitution, an attitude exemplified by their penchant for carrying firearms—the source of numerous tragedies—as protected by the Second Amendment of the Constitution. At the same time, free speech is criticized on behalf of human dignity and vulnerable minority groups. It’s argued that an environment that tolerates hate speech toward these minorities discriminates against the people who are the least able to defend themselves. It puts the safety of those who are thus targeted in jeopardy; at the same time, it makes a politics of inclusion impossible. In light of the threats posed by racists, xenophobes and other enemies of a just society, laissez-faire politics that may give free rein to hate speech are out of the question.

European countries have dealt with this challenge differently than the U.S. Faced with the burden of a dark past, numerous countries have criminalized the discourse of Holocaust deniers or revisionists and, with time, have extended this same ban to the minimization or negation of other historic crimes. Article 261 of the Swiss Criminal Code enacts this same proscription. The nightmare of a repetition of the horrors Europe went through in the still recent past remains too fresh, and it is relived with each wave of populist movements that treat this terrible history lightly.

At the same time, we are noticing an expansion of the sphere of prohibition. Sometimes it’s actually about protecting minorities, like Muslims, who are the object of disdain and even attacks. But we cannot deny that this broadening is used by the state to further its politics. For example, France has begun a criminalization of the Boycott, Divestment, Sanctions movement, which seeks to implement pressure tactics in Israel that were once used successfully against South Africa. France is, in this way, acting in the name of the fight against antisemitism.

Banning All Forms of Censorship

States that are less sensitive to the tradition of individual liberties have taken it even further. Ukraine has forbidden putting into question the thesis that the Holodomor, the great famine of the early 1930s, was a genocide of Ukrainians by Stalin. Several other former Soviet countries make their peace with the past by banning all communist propaganda. In the west, as governments have found themselves under the threat of terrorism but also populist contention, they’ve resorted to the repression of dissidence in the name of “security.” One of the main legal devices used are laws against hate speech, introduced to fight a completely different enemy.

Some critics reject the great English liberal John Stuart Mill’s conviction—the idea that expression, unfettered by all prevailing ideas, will lead us toward truth and reason—as naive. Others find the words (apparently wrongly) attributed to Voltaire laughable: I do not agree with what you say, but I will defend to the death your right to say it. Some countries, like Poland, have contained the decision-making role of the judiciary branch by attacking the way the courts are set up rather than the liberties themselves. Nevertheless, banning all forms of censorship remains a long and difficult struggle.