Being from the UK, and like many Europeans, I’ve often had to listen as someone explains how the US is the most free nation on earth. “At least I don’t get arrested for Tweets” they say, in what appears to them as a slam dunk, yet it is only ever met with confusion. “Is this a common occurrence?”, “would that even be a bad thing?”, “am I about to be arrested for Tweets?”, “what are these special freedoms the Americans have that I don’t?”.
But the thing is, I actually live in the US. Having spent 23 years in the Britain and 7 in the United States, I feel I have a pretty good grasp of life in both worlds. I argue not from stereotypical caricatures of nations, but lived experience.
I’ve never really been one for blind patriotism. There’s simply too much of the world to explore. And after all, how can you make the case that your country is the best if you haven’t lived anywhere else? It’s hard to see past the idealizations and the “this is how we’ve always done things”. But of course, simple travel is not suffice. Visiting Disneyland twice a year is neither going to surface flaws in that nation nor your own, both of which there are many. It takes time and diverse exposure to learn the realities of life abroad.
So whose freedom is it anyway?
One common misconception among some Americans is that other western nations lack freedom of speech. Legally protected speech is the norm, and a basic requirement for any functioning democracy. What differs across cultures is the how and to what extent this freedom is guaranteed.
When people say X or Y nation lacks free speech, what they’re usually referring to is the lack of protections for hate-speech. The US stands entirely alone in its consideration of hate as a form of protected speech. Americans are free to manufacture animosity against whomever they wish based solely up race, religion, gender, sexuality, and more. Many proponents subscribe to the slippery slope fallacy, where giving any ground on hate speech will snowball into infringement on other kinds. This argument make sense in a hypothetical where freedoms are absolute; however, they aren’t, nor ever have they been.
The first amendment of the US constitution states in no uncertain terms “congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble”. Nowhere did it ever make exceptions for defamation, incitement, copyright, threats, disturbing the peace, fraud, obscenity, false advertising, or many many more. Yet, such exceptions exist.
In truth, the actual text of the constitution doesn’t really matter much. It’s long been up to the ghost whisperers at the Supreme Court to inform everyone of what the founding fathers really meant. The extents and limitations of the constitution can, are, and will continue to be interpreted and re-interpreted thought Supreme Court case law. No tyrannical government is going to simply repeal the first amendment, they will instead whittle down its protections over time until it’s null and void.
Furthermore, many of the first amendment protections that the supreme court asserts do actually exist, only do so in theory. If the state cannot retaliate against me for my speech, why must I choose my words carefully to navigate law enforcement officials’ often volatile emotional states and fragile egos? Why is my choice of language the difference between freedom and being ticketed, arrested, or potentially even killed. Why must I worry about being tear-gassed while exercising my right to peaceful protest. These are things I did not fear nor encounter under the UK’s so-called oppression, yet here I do and must.
Some will argue that you can sue. Assuming you’re still alive, that is. But what normal person has the time, money, and fearlessness to square up against increasingly unaccountable tyrants with unlimited resources. I’m sure they’ll just add that to the calendar between commuting to their 9-5. Best case scenario, you get a nice payday, which doesn’t exactly un-violate your rights, nor spare the next victim, or lead to any real accountability. In fact, the realistic outcome is you probably get an expensive lesson in what qualified immunity is, how retaliatory police departments can be, then you’ll get to watch as that same officer goes on to repeatedly violate other people’s constitutional rights. Ironically, the constitution itself even divorces congress from any power to reign-in unruly state law enforcement.
Having faced the federal legal system myself, I can tell you that things don’t get a whole lot better there. You would think your first amendment protections would give you the freedom to say what you want, as well a not say what you don’t want. But you’d be dead wrong. Making false statements to a law enforcement official is a crime, and what actually constitutes a false statement is between you, a couple of hundred thousand in legal fees, and the district judge. So, better to just remain silent? Or so you thought.
Prosecutorial discretion grants prosecutors the authority to decide what charge to file, not file, or drop, entirely independent of the courts. It has long been the norm for prosecutors to compel speech by threatening to add charges, or offering to drop them as a reward. In no free nation should whether or not you face justice and how much justice you face hinge not on the crimes you committed, but your willingness to talk. This is not how things work elsewhere, and it certainly shouldn’t be how they work here. Justice should be decided by the judiciary, not agents of the state.
It often feels that people prefer to concern themselves with complex future hypotheticals, rather than the here and now. Never what now, only what if.
Hate speech as a pillar of freedom
Ultimately, the idea of protected hate-speech as the last bastion of freedom has always been logically incoherent nonsense. It’s a textbook case of not seeing the forest for the trees. Any arguments against these protections are just met with emotional knee-jerk responses of “oh, so you hate freedom?”, and life continues on.
As a matter of fact, I’d argue that protecting hate-speech has and will continue to accelerate the erosion of all fundamental rights far beyond just the ability to speak freely. Violence begins not with guns and bombs, but with words. A concept that every functional democracy has been able to grasp by now. Yet the US continues to sit idly by and watch as atrocity after atrocity is committed by yet another ‘lone wolf’ radicalized by hate. Not only does the US have to contend with the unimpeded natural spread of harmful ideologies, but with a unique ecosystem where any depraved two-bit grifter can get rich fanning the flames of fascism.
Maybe, just maybe, if we police a bit harder we can catch them in that window between protect speech and shooting up a mall? Always addressing symptoms never causes. Playing endless whack-a-mole with the outputs of the far-right media’s domestic terrorist mill. It’s certainly no coincidence that the nation protecting hate speech is the nation still having Nazi rallies 78 years after the end of WW2.
The issue at it is core, I believe, is that a majority of Americans view freedom as a line. At one end absolute freedom, and absolute oppression on the other. The more freedom, the better. Or so they say. But was segregation ended by granting more freedom, or by limiting people’s right to discriminate? Freedom has always been delicate balancing act where rights must be carefully checked to avoid one’s liberty infringing on another’s. However, when it comes to free speech, we continue to pretend that allowing bad actors to systematically silence and victimize minorities for profit is essential to the freedom of the nation.
But In what free nation does a sitting president leverage racial hatred to end someone’s sports career for taking a knee during the national anthem? In what free nation do politicians weaponize boycotts to silence supporters of at-risk minorities? In what free nation do people show up decked out with firearms and military hardware to intimidate performers at events for young children. I hate to be the one to tell anyone their baby is ugly, but my god, ugly it is.
When far-right extremists continually use their freedom of speech to actively oppress minority groups and their supporters, it might be time to accept that protecting hate-speech undermines more than just speech, it undermines the safety and security of the nation.
Constitutional rights only work if everyone agrees on their sanctity. But when a large segment of the population are closet authoritarians cosplaying as constitutionals, it’s simply not the case. One group attempts to enshrine rights for the benefit of everyone, whilst the other uses their own to silence dissidents. Protecting hate-speech serves only to accelerate the spread of fascism, and when they assume power they will not afford you the same good grace.
We ever so recently got to witness as a minority of religious extremists roll back a half a century old right to bodily autonomy, yet we somehow believe that free speech will be any different. The attacks are already relentless. Books are being banned, schools are being restricted in what they can teach, state officials retaliate against anyone promoting opposing ideology, and the violence increases with every passing year. The marketplace of ideas is nothing more than a monopoly of hatred and intolerance. It might not be today, or tomorrow, but at some point as the overton window shift, the supreme court will make concessions on free speech. And when they do, that right that you enabled the worst of the worst in order to protect will go out with a whimper not a bang.
America isn’t special. Those exceptional freedom don’t exist. They never have. People were sold an idea, a safety blanket to keep them warm at night. But now it’s time to wake up before the nation sleepwalks into a fascist police state.