by Timothy Lam

The US conception of free speech knows almost no boundaries. Charlottesville, argues Timothy Lam, shows how extreme forces misuse these liberties to silence others. And to change that, the US should learn from the German experience. 

The British social and political theorist Sir Isaiah Berlin famously came up with two concepts of liberty: A negative conception and a positive conception. Negative freedom demands individual autonomy free from government restrictions; positive freedom, by contrast, is often facilitated by a degree of government intervention, and aims to give all members of society the ability to achieve their own aims and desires. Most classically influenced liberals align themselves with the negative conception, in which they associate the defence of free speech with having a minimalist approach to formal institutional interventions. This is especially so in Anglosphere countries such as the US, UK and Australia, where the government actively takes the back seat in dealing with freedom of speech in the hopes of maximising civil liberty.

Since the adoption of the First Amendment to the United States Constitution, freedom of speech has always had substantial influence in the country’s socio-political outlook. It is a cornerstone element in any liberal democracy, and is perceived as invaluable in the legal system. In recent years, however, we have observed an increased tendency for extremist groups in western countries to turn to free speech as a vehicle for racist, violent and hate-inciting actions. In light of the Charlottesville protests, which have led to three deaths and thirty-eight injuries, the status quo view of free speech fails to sufficiently empower victimised communities.

I believe that this approach is unsustainable, and that one ought to think about freedom of speech more as a positive freedom which the state has a role in enabling. The state needs to take a more active role in setting the reasonable bounds for discourse, and it should recognise that there are certain actions which ought to be restricted. If Judge E. Conrad’s emergency injunction to authorise the rally had been withheld on the grounds of intolerance and hate speech, targets of Unite the Right would be less intimidated to publicly speak out and defend their rights. The idea here is a simple one: A small restriction in negative freedom has the ability to bring a far larger increase in positive freedom.

A proponent of the traditional free speech model in philosophy is John Stuart Mill. He is an influential advocate who famously fought against the idea of political censorship. However, he presents a crucial scenario in which the right to censor is justified: ‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.’ This concept evolved into Mill’s famous argument, commonly known as the ‘Harm Principle’, which dictates that an individual’s autonomy can be overridden from citizens if they use it to harm others. In order to understand, however, why such an abstract ethical principle has any bearing on free speech in the world of today, we must examine another abstract principle – that of Karl Popper. His Paradox of Intolerance argues that ‘We should …claim, in the name of tolerance, the right not to tolerate the intolerant.’, which manifests itself into this abstract model: As tolerance always entails freedom of speech, citizens within society have the freedom to perpetuate all views. This, however, means that citizens also gain the freedom to perpetuate intolerant views. Intolerant speech can encompass calls to violence against minority groups, or arguments for the desirability of discrimination. The fact that intolerant views are exclusive in nature means that, with sufficient traction from the masses, the abundance of tolerance may morph into intolerance. The conclusion of Popper’s Paradox, therefore, warns that abundant, unregulated tolerance eventually poses a very real risk to free speech and liberal democracy. This is a direct contravention to Mill’s Harm Principle.

Giving every type of speech an equal platform is counterproductive, as the rhetoric of fringe groups inadvertently silences the voices of the oppressed in society.

The argument that ‘hate speech’ should be protected under ‘free speech’ in the name of a more liberal democracy is absurd. Indeed, civing every type of speech an equal platform is counterproductive, as the rhetoric of fringe groups inadvertently silences the voices of the oppressed in society. This is the problem that popular conceptions of free speech face: The assumption of value neutrality. Under negative freedom, we assume that all opinions are equal to hold, whilst we are quick to condemn Nazi rhetoric over other conservative and nationalist rhetoric. As value neutrality does not match up with our instincts regarding speech, it seems strange to give all views an equal platform. Germany is a good example of state intervention on free speech.

In Martin Eiermann’s commentary of the Charlottesville attacks, he highlights how unlike the US, Germany addresses history unequivocally. By clearly drawing the line of free speech between nationalism and Nazism, to the point where ‘Incitement of the masses’ (Volksverhetzung) becomes a crucial concept in criminal law, Germans have ‘mobilised historical memory to teach the values of liberal democracy to present and future generations’. In other words, by restricting negative freedom – freedom from restrictions – and increasing positive freedom, including state-intervention through law, Germany has sacrificed some rights of extremist platforms for the social benefit of all others. It is recognising a time in history where it was intolerant. The acknowledgement of Nazism has led Germany to introduce anti-Nazi boundaries on free speech, alongside the banning of Nazi symbols, in an attempt to make sure it does not return as a mainstream political idea. As a result, the counter-intuitive method of decreasing one aspect within liberty allows us to achieve a safe liberal democracy for all members of society. This is a real-life manifestation of Mill’s ‘Harm Principle’.

Not only does intolerant speech result in intolerant ideas, but intolerant speech also has a propensity towards violence.

In the aforementioned article by Eiermann, he describes Nazi rallies in Germany as peaceful, orderly, and stringently controlled by the police. Unfortunately, as the United States police tend to be comparatively apathetical in response to neo-Nazi rallies in terms of scale and punctuality, violence in American rallies is rampant. This is not merely a manifestation of a particular ideological brutality or tyranny, but the nature of all intolerant and fringe ideologies.cNot only does intolerant speech result in intolerant ideas, but intolerant speech also has a propensity towards violence. When Nazi rhetoric is publicised, members of the African-American community or the Jewish community may feel obliged to take a strong opposition stance.

The more inflammatory the rhetoric is, the more it acts as a catalyst for violence and physical conflict. The more violence a faction uses against another faction, the more that empowers the victim against its adversary. As a result, the disarming of extremist groups in the US should not be done with violence. The actions of Unite the Right should be condemned on the basis of the Harm Principle alone, but the opposition’s reaction of punches and pepper sprays does precious little to silence the far-right.

Instead, the United States government must realise that it is their duty to enforce and regulate against hate speech stringently, or risk greater incidences of political violence undermining the core values of a functioning liberal democratic state.

I believe that the United States (and other Anglosphere countries) should follow the example of Germany’s censorship model, and pass bills so that the American jurisprudence can peacefully carry out prosecutions against the intolerant. As was the case with Germany, the United States will have to take extreme care in drawing the lines between peripheral comments and outright intolerant, inflammatory narratives. This is by all means a difficult and time-consuming process, but the relative success of Germany’s model should embolden Congress in its hope of policy accomplishment.

Timothy Lam lives in Hong Kong and is currently studying his final year at Charterhouse School. He hopes to read Politics, Philosophy and Economics at university and pick up a career in politics, law or international diplomacy. Beyond the realm of academia, Tim enjoys classical music, debating and Thai Boxing.