A lot of ignorance about free speech and its history has developed. The free speech absolutism promoted by Elon Musk is a symptom of this. In most ways, it will undermine rather than enhance freedom of expression. Of course, Elon Musk didn't invent this concept, but it is rather become a popular banner for many who don't want the hate speech challenged. Ironically, people who are not committed to free speech at all but who are eager to ban anything they don't like, especially if it is speech advocating some kind of marginalized group they dislike. What is going on here? Everyone says they favor free speech, but evidently have very different ideas of what that entails.
To understand better, it helps to put free speech in a historical context. Free speech advocacy historically grew out of the difficulty of criticizing the rich and the powerful. The elite controlled the speech and made sure they were immune to criticism. For a society, that meant that the common people, the poor and the weak were deprived of a voice. They could be squashed and abused without any way to really speak out against their oppression.
Thus, the history of free speech is intrinsically linked to the ability to speak truth to power. It is for those at the bottom to challenge those at the top. It has never been a problem, even in dictatorships, to spread hatred against marginalized groups. You look at European absolute monarchies or other feudal societies in the past, and they didn't have issues with people spreading hatred towards Jews or people of another religion than the majority. Hate towards marginalized groups has always been well-supported.
Thus, free speech laws were never made intending to protect hate speech. Hate speech has in many ways always had a privileged position, and been part of the oppression carried out by many states. Laws are rarely put in place to protect a majority mob, but to protect a minority. Constitutions tend to set a minimum bar of rights which all citizens should enjoy regardless of this skin color, race, gender, or age.
A problem with protecting hate speech by a majority mob against a minority is that you enable authoritarian movements. We saw how the Nazis in Germany were able to utilize hate speech to grow into a mass movement, end democracy, and end the free speech everyone cherished. Tolerance against the intolerant has been much debate in philosophy.
Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.
It was a topic which was put on center stage in relation to the murder of Dutch artist Theo van Gogh and Dutch politician Pim Fortuyn about a decade ago.
Ultimately, what we want to protect is a liberal democracy with free speech against totalitarian ideology. That means, among other things, that being able to speak out agains the rich and powerful is important. The case for hate speech, on the other hand, is weak. If we look at historical examples of where liberal democracy has ended and dictatorship has established itself, I cannot find any case where it began with restriction on hate speech. Quite the contrary, the Nazis utilized their ability to spread hate to gain a mass following and end democracy.
We saw in the election of Donald Trump how Russia and others were able to utilize social media to spread disinformation and stir hatred to amplify the appeal of Donald Trump. Putin and the Kremlin are hardly the champions of free speech. Yet, they exploited American free speech to get their Manchurian candidate into office. Donald Trump had been targeted as a Russian asset since the 1980s, where they invited him to Moscow and did everything to charm him. According to ex-KGB agent Yuri Shvets:
Donald Trump was cultivated as a Russian asset over 40 years and proved so willing to parrot anti-western propaganda that there were celebrations in Moscow, a former KGB spy has told the Guardian.
They later made sure he got plenty of loans from Russian banks when he struggled economically and nobody would lend him money. KGB analysis had determined that Donald Trump was a person with a great weakness for flattery, and thus somebody who could be manipulated and brought over to their side through flattery and praise. This worked very well for Russia. The world's only superpower got in many ways beaten by a second-rate power, often using rather crude propaganda techniques.
The idea that truth wins in the end is utterly naive. It reminds me of economist John Maynard Keynes' criticism of the idea of self-adjusting markets:
But this long run is a misleading guide to current affairs. In the long run we are all dead. Economists set themselves too easy, too useless a task, if in tempestuous seasons they can only tell us, that when the storm is long past, the ocean is flat again.
–– John Maynard Keynes, 1923
Keynes' point was that although markets will eventually re-adjust after a crisis, that could take such a long time that the present generation never get to enjoy it. Likewise, truth may triumph in the end, but this generation and the next may be dead before that happens. Truth triumphed in the end over Hitler, but not before tens of millions of people were dead or injured.
The idea that a maximalist approach to free speech gives us stronger free speech is not supported with any empirical data. If we look at the press freedom index from Reporters without Borders, we find that the country with the most absolutist approach to speech, the United States, is ranked at 42 on the press freedom index.
Germany, in contrast, which has many explicit rules against hate speech, holocaust denial and so on, is ranked in 16th place. Few Western other countries ban as many books in schools as the United States. In 2022 there was a record as reported by PBS:
Attempted book bans and restrictions at school and public libraries continue to surge, setting a record in 2022, according to a new report from the American Library Association released Thursday.
Ironically, this trend is not pushed by the ones objecting to hate speech, but rather by the same group who overlap strongly politically with the people who claim they are "free speech absolutists." I write it in quotation marks because the most prominent free speech absolutists I have seen tend to be absolute hypocrites. Take Elon Musk, who has pulled in numerous accounts back to Twitter who got kicked off for all sorts of intolerant speech. He does not in any way practice what he preaches. Yet, now, Elon Musk is instead kicking out left-wing accounts. The Intercept is reporting on how Elon Musk is essentially using right-wing activists to police Twitter:
As the Los Angeles City Councilmember Mike Bonin noted on Twitter, the suspended users include Chad Loder, an antifascist researcher whose open-source investigation of the U.S. Capitol riot led to the identification and arrest of a masked Proud Boy who attacked police officers.
Then there is the troubling aspects of how Elon Musk deals with speech within his own companies. From an article in the Guardian SpaceX employees say they were fired for criticizing Elon Musk in open letter:
Former employees of SpaceX have filed unfair labor practice charges with the National Labor Relations Board alleging they had been retaliated against for writing a letter that was critical of the company CEO, Elon Musk.
At Twitter, Elon Musk fired employees who tried to explain to him why his tweets were getting less following. From Ars technica report:
A new report says Musk did meet with engineers—after his test—and that meeting led him to impulsively fire an engineer who attempted to provide an alternative explanation for why Musk’s tweet views might be declining.
At Tesla, a black employee was fired for daring to speak out against widespread racism and harassment:
Gonsalves complained about discriminatory conduct in September 2020 and October 2020, but "no action was taken by management authorities in response to" either complaint, the lawsuit said. He was "suddenly terminated" in April 2021 after nine years at the company.
Elon Musk fired people for organizing unions and threatened employees with financial repercussions for joining unions. These were not just made up allegations. Tesla was found guilty in court.
In other words, Elon Musk is not by any means practicing what he preaches. Quite the contrary, he practices an authoritarian leadership style which does not tolerate dissent.
In other words, there are reasons to question the people who claim to be free speech absolutists and re-examine why exactly free speech was pushed and valued in the first place. To a free and tolerant society, I can see several important aspects which free speech laws can help achieve:
Holding the rich and powerful accountable for their actions.
Expose abuse and oppression of the less powerful.
Uncover corruption and power abuse.
Highlight miscarriage of justice.
Allow people to be well-informed in society, as to allow the election of good political candidates.
The powerful are not necessarily just politicians. In fact, some of the most powerful people in society are rich capitalists such as Elon Musk. They can decide the life, income, and future of thousands of people. Thus, free speech isn't merely about holding politicians accountable or people in public office but also the titans of industry. If workers are deprived of the right to organize or criticize their corporate masters, then the leaders of industry become much harder to hold accountable.
Another important role of the free is to uncover corruption and power abuse. If corruption is never exposed, then your political system ceases to function properly. That corruption is not merely limited to politicians. To take a bribe, you also need somebody to give it. Who is likely to give it? Other politicians? Of course not. Rich capitalists are the most likely culprit, and thus one cannot make some arbitrary line between what the government does and what the rich in private industry do when it comes to questions of speech.
Whistle-blowers in government can be persecuted for uncovering abuse by the government but so can employees. Many employees are brave and call-out things like illegal pollution, safety standards not met on cars or other equipment sold to customers. One example is Cristina Balan who was an employee fired from Tesla after raising safety concern in relation to their floor mats:
She was bothered to see what she believed were contracts awarded based on friendships more than quality and price. She had also been raising concerns about floor mats installed in the then-new Model S that tended to curl up under the pedals, a potential safety hazard. Defective mats have caused crashes in other automakers’ vehicles.
When employees such as Balan cannot speak up, then we risk consumers and others getting hurt. Whistleblowers such as Balan, Snowden and many others face serious repercussions for speaking truth to power. Hence, we are still quite far away from the ideals of free speech. This problem isn't by any means limited to the United States. In my native Norway there was a big whistle-blower case related to Kari Breirem who went up against one of the most prestigious lawyer firms in Norway BA-HR in relation to money laundering and political bribes. It even turned into a television series called Witch hunt.
In other words, one cannot be as naive as to think that free speech is defined by how many nasty things you can say in public without being prosecuted. That is not the mark of a free speech society. In fact, you are more likely to be allowed to spout hatred in a dictatorship without free speech. Achieving a good environment for free speech is far more complex. It is not enough to merely abstain from prosecuting people for their speech. Instead, there must be active measures to protect speech. The Danish cartoon debate several years ago regarding satire of elements of Islam was an example of this. Journalists would self-censor themselves out of fear. We know Salman Rushdie has lived with death threats for publishing Satanic Verses. These were not idle threats. In 2022 he was stabbed several times and sustained serious injuries and permanent damage. Here in Norway, one of the publishers of the book William Nygaard got shot.
But threats to free speech don't need to be that dramatic. If you risk getting fired for your speech, then that will often have far more dramatic consequences than getting a fine from the government for your speech. One of the few people sentenced for hate speech in Norway got a fine of $1500. Not pocked money, but also much less serious economically than losing a job in a tight labour market.
I was made personally aware of this issue when a company I worked for got bought out by a larger American company. The new American bosses went over our new employee manual. It was clearly made for American conditions. It quickly became abundantly clear that a long list of employee rights taken for granted in Norway simply don't exist in the US. For instance, the employee manual spoke of drug tests, which would be highly illegal to conduct on employees in Norway. Another example was criminal background checks, which is also illegal in Norway.
But a third item which surprised me was a detailed list of things which would be illegal to discuss at work, such as politics or religion. All the Norwegians in the room were quite shocked. Those were entirely normal topics for lunch talk in Norway. In fact, the whole incident was almost a bit comical because our new American management was equally shocked about not being allowed to restrict speech in the office. It was one of those cultural crash moments where you realize that ideas of what constitutes free speech in different cultures vary considerably. For most Europeans, I don't think one would consider there to be free speech if it can be arbitrarily restricted in a private setting. Especially for something as important as work, which is a considerable part of life for everyone.
And especially at work, it is important with free speech support, as it is one of the areas where one deals with major power imbalances. Much of the struggle for freedom historically has not merely been a struggle against government oppression but also corporate oppression. Being able to speak out against those in power politically as well as economically is of equal importance.
It is also why I believe we often end up with policies which may look like contradictions. Just as we cannot have a tolerant society if we have boundless tolerance towards the intolerant, we cannot really achieve the goals of free speech if all speech is allowed. Today we see how genuine opinions and concern are drowned by spam and bot armies. The powerful and wealthy can employ troll farms, buy ads, media, or even control or run media itself to drown opposing opinions and only spread their own. Freedom of expression isn't all that valuable if your voice is drowned out.
That is why studies of freedom of expression and press freedom indices look at things such as journalistic freedom and independence. If a journalist cannot easily write their opinion without getting fired, then the media no longer represent different opinions but merely the opinions of corporate masters. It is why having only corporate media is problematic in terms of having a diversity of opinions and views represented. I don't think it is an accident that my native Norway has the top ranking on freedom of expression.
Norway has many policies in place to secure diversity of opinion. That is more important in promoting free speech than allowing hate speech. In any media market in Norway, the second largest representative tends to get financial support to help avoid forming monopolies within the media sector. The media themselves have set up an organization to police themselves called Norsk Presse Forbund. One can file complaints about unethical behavior by the media, and a board with representatives from different media organizations can pass a judgement. The media itself has an interest in policing itself to help promote trust in them, as well as potentially seeing the government take a more active role. But none of that will happen without actually building institutions to do it.
In Norway, political ads on TV have long been banned. While that might look like a restriction on free speech, it helps create the balance I have remarked on as important. Instead of the rich and the powerful drowning out the voice of everyone else, each political movement is forced to play on the same field. If they want their word out, they need to participate in TV debates, write op-eds and similar. In other words, they must participate in a way where they can easily be challenged. Ads are a poor substitute, as they allow you to scream something unopposed. Ads, by their very nature, are also based on emotional manipulation of viewers. We know the ad industry has studied human psychology well and knows exactly how to push our emotional buttons while bypassing critical thinking.
In a TV debate, questions and answers are often controlled in a way that makes it hard to launch into an emotionally manipulative speech or argument. You will get called out pretty quickly. Truth cannot win if public debate has been entirely steered into an emotionally manipulative environment where facts and logic no longer matter.
Who Will Decide What is Allowed?
The "free speech absolutists" have a favored argument against any control on speech: "Who will decide what is allowed? Who is the arbiter of truth?" Elon Musk asks this question in a BBC interview where he is challenged about Twitter.
The implication here is that those of us arguing for restrictions intend for there to be some kind of grand bureaucratic truth Czar in the government deciding what is right or wrong. The further implication is that this truth Czar position is entirely political and changes with every administration. The assumption is that this will work like oppressive dictatorships where the ruling part persecuting anyone saying what they don't like.
But this issue isn't any different from deciding any other truth issue. Who decides who is guilty of a crime? Is there a partisan government employee in charge of this? Some evil bureaucrat in a gray suit?
Detractors act as if this question is a novelty that nobody has ever thought about. But we have a division of power for a reason. We have systems with juries and layman judges for a reason. We elect representatives. Furthermore, we have media and free speech in large part, so we can expose power abuse. We have laws and constitutions. Politicians aren't allowed to make any decision they like without it being supported by the law of the land. And if they should still do it, there is a free press to call them out.
Ironically, Elon Musk is among the ones attacking the media. The ones who are supposed to hold those in power accountable. Perhaps because he is, in fact, one of the people in power who needs to be held accountable. When you are the richest man on the planet and have millions of followers on large media platforms, then, of course, you have power. Ironically, some of the most powerful in society still like to cast themselves as the prosecuted ones, even if they themselves are entirely cavalier about destroying the lives of people by firing them on a whim. Especially egregious was how he mocked former disabled Twitter employee Haraldur Thorleifsson. But he was eventually forced to apologize because the media did their duty and held Elon Musk accountable. They exposed his bad behavior, hypocrisy and prejudice.
You may wonder why I single out Elon Musk. He is by no means the worst, but he is the richest man in the world. He is also a person who has done many remarkable things. In fact, I have written several articles celebrating Elon Musk and his achievements. However, we cannot turn humans being into infallible Gods. When somebody spends $40 billion to buy a media platform supposedly to save free speech and does not practice that at all himself, then it is cause for criticism.
But let me get back to the original question: Who is the arbiter of truth? The way I see it is no different from handling any other truth question in court. If we can entrust our courts to decide whether a man has committed murder or not and potentially send him away for 20 years away or more, then certainly the same courts are capable of handling the question of whether hate speech was committed or not. We entrust the government with handling elections. If we thought the government was incapable of doing that, then why do we even have elections?
The question is not about whether the government does it or not, but about the specifics of how a system is implemented. By law and practice, we can establish independent institutions. A common approach in Norway is to have different stakeholders represented when important decisions are taken. For instance, in questions of criminal guilt, we don't se use juries anymore, but a panel composed of professional and non-professional judges selected among the public.
Supreme court justices are selected by a panel composed of both politically appointed representatives as well as representatives from the legal profession. In corporations, many important decisions must be made by bodies composed of representatives from management, shareholders and employees. Likewise, decision on agriculture may be taken by groups consisting of both farmers and political representatives.
My point with these examples is to show that, just like jury systems, we humans have devised numerous ways to hinder or limit power abuse by a central government. And if you think such systems cannot ever be made to work, well then you might as well stop sentencing people for crimes because we cannot trust the courts. We might as well stop having elections because we cannot trust that the government carries out an election in a fair and unpartisan manner.
The point is that modern democracies have invented sophisticated democratic processes to see to that power abuse is limited, and fair decisions are made.
The problem with free speech absolutism
I have covered several issues with free speech absolutism. Perhaps the most obvious issue is that it is a misnomer. The ones claiming to be free speech absolutists are mostly anything but. Either they are like Elon Musk, busy shutting up and firing anyone disagreeing, or they are busy banning books in schools.
The other problem is that free speech has little practical value if your voice is drowning in a sea of lies, deception, and spam. The powerful doesn't need laws against free speech. They can simply drown out opposition by flooding the media with disinformation and lies.
Free speech cannot merely be something of theoretical value. It has to have actual meaning and consequence for society. It has to be able to challenge those in power, whether they hold office or run large corporations. Those large corporations, by the way, may be a media organization. Imagine if one corporation owned all the media. How much would your freedom of speech really matter then? Try criticizing the ones having a media monopoly and see how far that goes.
What I am getting at is the obsession with the theory of free speech that many have while they entirely forget practical realities. It is a bit like thinking Iraq had democracy as soon as they held elections. Likewise, for free speech to matter we need a plurality of media. We require different competing media organizations, and they cannot all be serving the ultra rich. You got to be able to state your opinion without fear of being physically attacked or fired from your workplace.
It is infinitely naive to think that if one only allows hate speech then somehow by magic truth will triumph and one will get a great media environment with a plurality of opinions and ideas. No, facilitating and supporting a diversity of opinion and a media reality where common people can have their voices heard is a much more complex affair which requires support structures at many levels. This idea that nothing good can come out of government and that it must always be restricted further for more freedom is an absurdity. It assumes that the only power structures and organizations affecting your life is in the government. It also assumes the government is a uniform entity. In reality, much of the systems we put in place into government is to protect against that very same government.
If you remove watchdogs which are part of the government, then you are in principle making the government "smaller" but you have also opened the gates for more abuse.
Seeking an absolute minimal government does then in fact not make you freer. A government with the supreme court removed isn't protecting your rights as well as a government with a supreme court. Speech is much the same. True free speech is a complex thing to achieve. It involves both creating a good media environment and protecting your speech against oppression and silencing by others.
But What About Cancel Culture?
Because I am not championing absolute free speech and I am a leftist (social democrat) I would invariably be challenged on the problem with cancel culture. It is important then to remind readers that I am not American and thus don't fit the American leftist mould. There is a tendency in America to think that the American political boxes are somehow universal. That a leftist abroad would hold the same cocktail of views as a typical leftist in the US.
For us Nordic people in general, employee protection is of profound importance. What I see in the US is that employees have weak protection against being fired. Ironically, that is something the American right has championed and advocated for decades. The very same people now complaining that people are getting fired for their expressed views. Sorry, but you enabled all that! You took away all the protections that could have kept you at work after opinioning something your bosses didn't like, or the public didn't like.
I am being entirely consistent here. I have made the case through this article that speech must be a protected right, as is common in Europe, and not merely something the government promises not to attack. Many American conservatives I have discussed this with argue that the government has no business protecting speech in a company, as that is private property. Okay, but then don't complain about cancel culture and how it is a threat to free speech. If you are not willing to protect speech in a corporate setting, then you cannot complain about it being suppressed either.
You can absolutely get fired in Norway for something you said, but because the law protects your speech and employee protections are much stronger to begin with, that is much rarer. You cannot make speech which clearly undermines and hurts the company you work for. Like you couldn't go out in public and talk about how all their products suck. But then again, I am not a free speech absolutist. I believe in reasonable restrictions.
What I am arguing for is a system grounded in law rather than whims. Without free speech protections, what you may express in your workplace, at a school or university, will be up to the whims of your employer. You end up with mob rule. It will be the cries in social media which decides whether your employer gets pressured enough to fire you. With proper employee protections, an employer can simply tell the mob that they have no power to just kick out.
> If we look at the press freedom index from Reporters without Borders, we find that the country with the most absolutist approach to speech, the United States, is ranked at 42 on the press freedom index.
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> Germany, in contrast, which has many explicit rules against hate speech, holocaust denial and so on, is ranked in 16th place.
The natural conclusion from this is that the Reporters without Borders' press freedom index is total BS.
> Few Western other countries ban as many books in schools as the United States. In 2022 there was a record as reported by PBS:
The books in question are pornographic books being put in school libraries. Do you support exposing children to porn?
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> It was a topic which was put on center stage in relation to the murder of Dutch artist Theo van Gogh and Dutch politician Pim Fortuyn about a decade ago.
I'm confused. Do you support or oppose van Gogh's and Fortuyn's rights to free speech? After all most of the "hate speech" laws would include criticizing Muslims as "punching down" at a religious minority, and hence "hate speech".