The U.S. May Stand Alone as a Haven for Free Speech

The First Amendment shields Americans from censorship, but authoritarian legislation in Britain and Canada warns of what could be in store if that protection fails.

It's no secret that government officials don't like the messy business of free speech, especially when it involves criticism leveled at them. Increasingly, they aggregate their grievances, lumping hateful material, vigorous debate, and stuff they just don't like into a catch-all category of "online harms" that they insist must be suppressed by the state. While the First Amendment protects Americans against this latest wave of censorship, authoritarian legislation in Britain and Canada warns of what could be in store if that protection fails and politicians get their way.

The recent assassination of British MP Sir David Amess added impetus to an already strong push for restrictions on speech. Of the resulting uproar from other lawmakers, the BBC noted that "one common thread has emerged – the amount of abuse politicians face online."

"Home Secretary Priti Patel said the government's Online Safety Bill would offer an opportunity for all MPs to come together to close 'the corrosive space online where we see just dreadful behaviour'," added the report.

But the bill was in the works well before the brutal stabbing of Amess, based on a December 2020 white paper complaining that "In the wrong hands the internet can be used to spread terrorist and other illegal or harmful content, undermine civil discourse, and abuse or bully other people." Even earlier, a 2017 U.K. government report fretted that "the intimidation experienced by Parliamentary candidates, and others in public life, has become a threat to the diversity, integrity, and vibrancy of representative democracy in the UK."

While politicians don't like being on the receiving end of harsh words, the draft Online Safety Bill doesn't confine itself to shielding them from vitriol. It also addresses "disinformation and misinformation," "child exploitation and sexual abuse," "terrorism content," and other forbidden material that private services would be required to remove or block. Some issues in the bill are real concerns, but many are debatable at best. The ill-defined terms are unified by little more than that they upset officialdom. Overseeing enforcement would be the Office of Communications (Ofcom) which would be empowered to determine what speech is permitted and what is forbidden.

"The bill does not define what is and is not 'harmful'," objects a coalition including the Index on Censorship, which adds that the law "could lead to the over-censorship of free speech by the Silicon Valley giants as they attempt to avoid huge fines." The coalition warns that "the bill will create two tiers of free speech online: free speech for journalists and politicians, and censorship for ordinary citizens" since it affords privileged status to government-recognized media.

The unfinished bill is also likely to ban online anonymity, so that anything that upsets censors can be easily traced to its source.

Britain's government isn't alone in moving to curb free-wheeling online discussions. Canada too is moving to muzzle speakers and publishers who offend the powers-that-be.

"Individuals and groups use social media platforms to spread hateful messaging," objects a government discussion guide regarding proposed legislation. "Social media platforms can be used to spread hate or terrorist propaganda, counsel offline violence, recruit new adherents to extremist groups, and threaten national security, the rule of law and democratic institutions."

Like the draft U.K. legislation, the proposed law in Canada targets a grab bag of concerns: "terrorist content; content that incites violence; hate speech; non-consensual sharing of intimate images; and child sexual exploitation content." It also conscripts private entities into "a statutory requirement … to make the content inaccessible from their service in Canada within 24 hours of being flagged."

"The proposed approach does not strike an appropriate balance between addressing online harms and safeguarding freedom of expression," objects Michael Geist, a law professor at the University of Ottawa.

"Rather than adopting a 'made in Canada' approach consistent with Canadian values, the plan relies heavily on policy developments elsewhere," he continues. "Yet the reality is that those models from countries such as France, Germany, and Australia have met with strong opposition and raised serious concerns of unintended consequences."

"The Canadian proposal seeks to import the worst aspects of Germany's Network Enforcement Act, ('NetzDG'), which deputizes private companies to police the internet, following a rushed timeline that precludes any hope of a balanced legal analysis, leading to takedowns of innocuous posts and satirical content," points out the Electronic Frontier Foundation.

Germany's legislation, which offloads enforcement of vague rules to private entities under threat of stiff penalties, has served as a terrible inspiration for authoritarian copycats around the world.

"Whereas Germany's initial goal was to curb hate online, the NetzDG has provided a blueprint for Internet censorship that is being used to target dissent and pluralism," observed Jacob Mchangama, executive director of Justitia, a Danish judicial think tank, in 2019.

To use NetzDG as a model for legislation at this late date is to openly spurn civil liberties concerns and embrace the illiberal suppression of speech with little room for appeal.

Neither the British nor the Canadian legislative proposals are compatible with America's First Amendment, which already protects speech regarding race and "terrorism" that will get you arrested in the U.K. and other nominally free countries. The U.S. will be even more of an outlier if its close allies go further down the path of banning content and censoring edgy jokes and arguments.

That is, we'll be an outlier if we retain our commitment to liberty. Polling finds support for free speech in this country remains strong relative to other nations. But researchers say that tolerance for dissenting ideas is eroding, primarily over progressive concerns about equality. As a result, "The range of opinions most Americans feel at liberty to express in school, at work and in conversation with friends and family has narrowed," according to political scientists at Berkeley and the University of Southern California. If that continues, the U.S. may join Canada, the U.K., and other once-free countries as graveyards of free expression.