Evidence Is Growing That Free Speech Is Declining

Protesters hold up banners at an anti-same-sex marriage rally in Sydney on September 23, 2017. PETER PARKS/AFP via Getty Images
Protesters hold up banners at an anti-same-sex marriage rally in Sydney on September 23, 2017. PETER PARKS/AFP via Getty Images

The global landscape for freedom of expression has faced severe challenges in 2023. Even open democracies have imposed restrictive measures to combat a range of threats including hate speech, disinformation, extremism, and public disturbances.

The European Union’s Digital Services Act (DSA) exemplifies this trend. Following Hamas’s attack on Israel on Oct. 7, the European Commission’s cyber sheriff Thierry Breton sent a flurry of not-so-subtle letters to tech companies such as Meta, Google, TikTok, and X (formerly known as Twitter), inquiring about responses to unspecified hate speech, “terrorist content”, and “disinformation”, threatening significant fines for noncompliance. Breton’s aggressive policing has sparked accusations of overreach and violation of international human rights standards. Despite these developments, many democracies see the DSA as a global blueprint for online regulation and Chile, Costa Rica, and Taiwan are on course to adopt bills inspired by the European prototype.

Meanwhile, the right to protest has been severely curtailed in the context of the Israeli-Palestinian conflict. France and Germany have imposed broad bans on pro-Palestinian demonstrations, citing hate speech and public order concerns. Laws against hatred, offense, and insults have also been significantly expanded in many democracies. In England, a woman was pursued and interviewed by police for holding a placard satirically depicting the British prime minister and home secretary as coconuts—a Black, liberal city councilor was previously convicted of racial harassment for using the term. In Ireland, a new hate speech bill is set to criminalize the “material that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics… with a view to the material being communicated to the public or a section of the public, whether by himself or herself or another person”. This broad definition and application could criminalize memes or gifs downloaded on mobile phones or laptops”. And the Danish government is reintroducing the crime of blasphemy, virtually unenforced since 1946, outlawing the “improper treatment” of religious texts. Artistic freedom is not immune either, as seen in South Korea, where the National Assembly’s secretariat canceled an exhibition in the parliament building lobby due to its unflattering portrayal of the country’s president.

As documented in a new report by the Future of Free Speech Project, these dramatic erosions of freedom of expression in democracies are not novel or isolated events. They are part of a broader and global free-speech recession that has afflicted open democracies.

The report analyzes free speech trends in 22 open democracies across the globe from 2015 to 2022, a period with pivotal global events including devastating terrorist attacks, the COVID-19 pandemic, the war in Ukraine, and disinformation campaigns by authoritarian states such as Russia and China.

The trends are as clear as they are alarming. 78 percent of the developments identified by experts in the surveyed countries pointed to increased speech restrictions. Except for 2015, every year witnessed a majority of speech-restrictive developments (as opposed to speech-protective developments), most of them laws, with a noticeable surge in 2022. National security, national cohesion, and public safety were the most cited reasons for suppressing free expression.

In the fight against Islamist radicalization, Denmark adopted a flurry of laws restricting the entry of religious preachers whose teachings undermine “Danish values” and criminalizing the wearing of burqas and niqabs as well as the religious speech of “hate preachers”. Costa Rica criminalized defiling or disrespecting the flag, coat of arms, or other national symbols.

The 2018 Australian Espionage and Foreign Interference Act imposes severe penalties, up to 20 years in prison, for leaking or sharing sensitive information deemed to be against national interests.. The act’s broad scope and harsh penalties have sparked a debate on its chilling effect on journalistic freedom and public interest reporting that may be impacted due to self-censorship. Perhaps no democracy has gone further in repressing “terrorism” speech than Spain, where the Catalan rapper and political activist Pablo Hasel received a nine-month jail term for glorifying terrorism and slandering the crown and state institutions in lyrics and tweets that attacked the monarchy and police.

Democracies have also doubled down on hate speech. In 2022, Canada prohibited “condoning, denying or downplaying” the Holocaust. Germany’s NetzDG law, enacted to combat hate speech, mandates social media platforms with more than 2 million users to block or delete clearly illegal content within 24 hours of receiving a complaint or face hefty fines. Additionally, in 2021, Germany broadened its laws to criminalize hate-motivated insults. This aggressive stance has led to tangible effects: The New York Times reported in 2022 that more than 1,000 Germans had faced charges for online hate speech since 2018, with some cases involving early morning police raids and confiscation of personal devices. Notably, German laws against hate speech and offense have been used to investigate individuals for comments critical of politicians, raising concerns about its impact on free political expression. South Africa has also adopted a law against online hate speech and is in the process of adopting a more general hate speech bill. However, South African courts, including the South African Constitutional Court, have held that freedom of expression protects even hurtful or offensive speech.

The scale of speech restrictions in the shrinking club of open democracies suggests that while democracies face serious challenges, the prescribed cure to these ills risks becoming worse than the disease. In particular, open democracies should be careful not to become too comfortable with using the very tools that flawed or illiberal democracies such as India, Hungary, and even Brazil employ—including censorship of dissent and increasing government control of the public sphere.

The temptation to try to resolve complicated social and political issues through ever-new means of suppression is not only dangerous from a principled point of view. It is also doubtful whether it actually helps solve these problems.

Despite the German efforts to crack down on hate speech, authorities noted a 300 percent increase in antisemitic incidents after Hamas’s attacks on Oct. 7, all while the far-right political party Alternative for Germany is polling stronger than ever. The recent election victory of Dutch anti-immigrant crusader Geert Wilders—who has been convicted of group insult and prosecuted for (but acquitted of) inciting hatred and discrimination—should serve as a warning that repression might very well amplify rather than silence illiberal voices.

In fact, there is growing evidence that free speech is more likely to limit than to fan violent conflict in open democracies. The positive relationship between free speech and social peace seems to hold especially true when it comes to terrorism. One reason for this is the so-called safety valve theory, which stipulates that permitting rather than suppressing even extremists’ grievances reduces the likelihood that they resort to violence. Allowing extremists to air their thoughts may also make it easier for law enforcement to identify and keep an eye on those who are most likely to escalate hateful words into violent acts.

Abandoning the rush to repress harmful speech does not necessitate indifference to the very real challenges that democracies face from those intent on subverting open societies and their values. When it comes to hate speech, facilitating counterspeech (both on and offline) should be prioritized. So should the inculcation of the values of tolerance and equality in schools and education. The official expression of solidarity with the targets of intolerant views and condemnation of the perpetrators should also be prioritized to demonstrate that minority and vulnerable groups are valued members of society.

Civil society, universities, and tech companies can also contribute to fostering an ecosystem of information and ideas that incentivizes trust, cooperation, and reliability—rather than polarization and antagonism—in order to minimize the disinformation and hate speech that democracies rightly worry about. All of these non-restrictive alternatives to censorship depend on recognizing the ability of free speech to empower, create, improve, and uplift. This is exactly what sets democracies apart from their illiberal and authoritarian counterparts.

Jacob Mchangama is CEO of The Future of Free Speech, the author of Free Speech: A History From Socrates to Social Media, and Senior Fellow at the Foundation for Individual Rights and Expression.

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