Journal of Free Speech Law: "Why Freedom of Expression Is Better Protected in Europe Than in the United States,"

by Prof. Thomas Hochmann (Univ. of Paris Nanterre), 2 J. Free Speech L. 63 (2022).

Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; the abstract (the article is here):

Legal reflection on non-governmental restrictions on free speech runs two risks: the danger of exaggerating these restrictions, and the danger of ignoring them. Non-governmental restrictions are often exaggerated in public discussion, when any vehement criticism is described as a restriction of freedom of expression. However, freedom of expression is not freedom from contradiction. The second danger is to ignore the problem of genuine non-governmental restrictions on free speech through a strict application of the state action doctrine: non-governmental restrictions would simply not be a constitutional issue. The European perspective rejects this view. Where many Americans view free speech as a regulation of governmental motives, Europeans are more attentive to practical outcomes. For a speaker, it might not make a big difference whether an act of censorship comes from the government or from a private actor.

Nevertheless, Europeans also perceive the Constitution primarily as a framework dealing with governmental powers, and the most frequent approach consists in indirectly imposing on private persons the constitutional obligation to respect freedom of expression. This reasoning considers that the government is involved in private restrictions, which are reconceptualized as "GONG restrictions" (government organized non-governmental restrictions). In the end, the European speaker, less protected than her American counterpart against the government, enjoys a greater protection against private actors. This might mean that freedom of expression is better protected in Europe than in the United States.

Comments

[Brett Bellmore]

"For a speaker, it might not make a big difference whether an act of censorship comes from the government or from a private actor."

Except for the guys with guns showing up to kidnap you if you try evading the censorship. Which seems to be a lot more common when it comes to governmental censorship. Well, unless maybe censorship of pictures of Mohamad.

"In the end, the European speaker, less protected than her American counterpart against the government, enjoys a greater protection against private actors. This might mean that freedom of expression is better protected in Europe than in the United States."

In theory, yeah. In practice? It doesn't work out that way.

[TwelveInchPianist]

"Norwegian actress Tonje Gjevjon faces up to 3 years in prison for saying men cannot be lesbians"

[Michael P]

To be fair, the word "might" does an awful lot of work in pieces like this one.

[David Welker]

I wouldn't lessen the protection Americans have from direct government censorship.

However, private censorship can also be a problem for democracy (or if you prefer, be a problem for republican deliberation -- if you are one of those "it is a republic, not a democracy" people.)

If people in their capacity of private citizens do not feel free to debate public issues, deliberation will not occur. And that tends to undermine the entire theory of self-government. In a republic, people are supposed to be free to publicly deliberate about public issues. But if doing so leads to undue private retribution (and not merely criticism), then we are really undermining our republic itself.

At that point, I believe that private action becomes a constitutional issue. Just as private action in the form of a coup would be a constitutional issue.

[tkamenick]

But there's a difference between "private actors should be more accepting of speech they don't like" and "government should force private actors to be more accepting of speech they don't like". You can't do the latter without direct government censorship.

[David Welker]

It isn't censorship to regulate or limit private retribution for speech on matters of public concern.

And it is not a matter of making people more "accepting" of speech they don't like, as in making them "approve of" or "endorse" that speech. It doesn't imply limiting criticism of the person (and especially not that person's ideas). But it does imply limiting the ability of people to attack the speaker with respect to their ability to say what they believe to be true or to make such an example out of the person that others are afraid to say the same or similar things.

If you think about it, much of the politically correct thought that has gained some currency in some parts of society have their origins in identity politics. The idea that some forms of criticisms are equivalent to "attacks" or "violence" that are necessarily forbidden. There is something to this. If you attack or criticize someone based on their identity, this may be more psychologically hurtful than criticism that is aimed exclusively at their ideas. (Although, some people make their ideas their identity, such that you can't attack their ideas without the person feeling themselves under attack.)

But one cannot separate identity from ideas. In fact, identity is an idea. For example, take the idea that a person born male can "transition" so that they become a female. If a person buys into this idea and transitions, the idea that a person can change from male to female becomes an identity. The person wants to say they are female even though they have arrived there by some other path. But it is also an idea. So, there will be this move. You now can't attack or criticize certain ideas without criticizing the identity of a person. To criticize the ideas that constitute that person's identity is to attack them in a deeply hurtful way. And so, in their ideas, if they seek to attack you back, that is merely self-defense.

But what if this so-called "self-defense" were in the form of not just criticism, but a physical attack? It seems rather obvious that if you physically attack a person for saying something, if you make an example out of them so that others are fearful to say what they did, that this limits the possibility of debate. (Which may be the point, but also isn't consistent with the idea that people have a right to decide for themselves what they believe and what they say.) But what if you refrain from actual physical attacks. What if you merely make it impossible for them to have a career and impossible for them to lead an ordinary life. This could achieve the same result. It could spread fear in society about expressing the same idea or similar ideas.

If we are going to be non-physically attacking people for their ideas to make an example out of them, we had better be sure we are right. Because we are taking that idea out of the realm of democratic and republican discourse. We are saying, that with respect to this idea, those who happen to now exercise positions of authority in society are now dictators. No one better go against THIS idea, or else.

But where is the line? We see it shifting in our society. And that makes some people nervous.

Ultimately, I think if we are going to say that we are free to debate and attack ideas, that implies the right to debate and attack identifies. With all of the psychological distress and hurt feelings that the latter implies.

Ultimately, even physically attacking someone can be an expressive activity. But we regulate that conduct despite its expressive component. Seeking to "cancel" the "bad people" with their "bad ideas" on social media has an expressive component too. In both cases, part of the motive for the attack may be the desire for the appearance of harmony, which one may hope becomes genuine harmony after the new social order becomes accepted and unquestionable.

Ultimately, a democratic or republican society requires one to refrain, to some extent, of "going after" the person or source of ideas that one does not like or agree with. But the line isn't so clear. After all, even criticism can be felt as a personal attack by some, and will cause people to censor themselves out of fear. Such is unavoidable to some degree. But "cancel culture" is beyond mere criticism and takes attacks to the next level. And I would argue, so does limiting access to the communication mechanisms that are ordinarily open to everyone.

[Brett Bellmore]

"But there’s a difference between “private actors should be more accepting of speech they don’t like” and “government should force private actors to be more accepting of speech they don’t like”."

How is this difference materially different from the difference between "private actors shouldn't discriminate on the basis of innate characteristics" and "Government should force private actors to refrain from discriminating on the basis of innate characteristics"?

It seems to me that any country that is already enforcing anti-discrimination laws has rendered the distinction you're appealing to untenable.

[Brett Bellmore]

To amplify:

The 1st amendment applies only to government: Originally the federal government, then the 14th amendment extended it to the states.

The 14th amendment similarly imposes a non-discrimination mandate on states, not individuals; "No State shall... nor shall any State".

If it's legitimate for the government to impose its own disability on individuals in one case, what principled argument is there for it not being legitimate in the other?

[Randal]

You need to get into meditation or drugs or something to de-warp your mind.

[Gandydancer]

"You can’t... force private actors to be more accepting of speech they don’t like... without direct government censorship."

Um... no. Restricting you from censoring, whether that ought to be done or not, is not generally "censorship".

[Dave_A]

As a matter of US law, government forcing someone to speak (or to amplify others speech using their private property) is treated identically to censorship - it's unconstitutional under the compelled speech doctrine except in very limited cases.

[Dave_A]

The issue is one of property rights as well as compelled speech.

If the government requires private actors to allow their property to be used to transmit-and-amplify speech, that is an expropriation of private property by the government...

It's also compelled speech, a 1st Amendment violation.

The counterargument you pose about 'freedom to debate' doesn't fly because at the end of the day no one is being stopped from 'debating' - they are simply being stopped from using someone else's private property to engage in that debate - by the owner of that property.

[tkamenick]

Agreed. Also, people have choices not to deal with private actors who have speech policies they don't like. No such choice with government.

[SMP0328]

The European view on free speech is much narrower than how freedom of speech is viewed in the United States. It's absurd to claim otherwise.

In Europe, you can be criminally charged for "hate speech" or for expression a view the government considers hurtful. In the United States, such expressions are considered part of free speech.

[Dr. Ed 2]

“In Europe, you can be criminally charged for “hate speech” or for expression a view the government considers hurtful. In the United States, they’ll just get you for something else.

Everyone knows what you are being punished for, regardless of what it says on the paperwork.

[Noscitur a sociis]

It must be exhausting to hate the U.S. this much.

[Gandydancer]

It's not "the US" he's hating.

[Sarcastr0]

I's just the government, half the voters, the media, the schools, big businesses...

[Rev. Arthur L. Kirkland]

He hates modern America and its liberal-libertarian mainstream.

That's why he likes the Volokh Conspiracy.

[David Welker]

I find it amusing that you think, with all of your constant trolling and frankly weird assertions, that you are somehow part of the "mainstream."

You are definitely trying to exploit the psychological alienation of some conservatives from what they view as the mainstream. Which is somewhat amusing, but sometimes a dog has to find a new bone to chew on.

[Gandydancer]

Artie hasn’t found any new bones in all the years since I first encountered his tedious posts, so I’m guessing he’s not a dog in your estimation.

Which is fair. He’s a louse, or some other form of blood-sucking insect.

[Gandydancer]

This might mean that freedom of expression is better protected in Europe than in the United States.

This might mean that pigs fly, but doesn't.

Not that free speech is all that healthy in the USofA, but in Europe it's pretty much dead.

[David Nieporent]

Not that free speech is all that healthy in the USofA, but in Europe it’s pretty much dead.

Gotta love nuanced thought. If it's dead in Europe, what would that make it in Russia or China or North Korea?

[Gandydancer]

Also dead.

You prefer “in a coma” for Europe?

The dead might conceivably rise in either place, but no analogy is perfect.

[Don Nico]

"what would that make it in Russia or China or North Korea?"
Mummified?

[TwelveInchPianist]

"In the end, the European speaker, less protected than her American counterpart against the government, enjoys a greater protection against private actors. This might mean that freedom of expression is better protected in Europe than in the United States."

Presumably European speakers don't have protection against private actors for expressing viewpoints that European governments choose to censor, so no, freedom of expression is not better protected in Europe than in the US.

[Kazinski]

Getting arrested for getting into a Twitter spat with a trans woman just wouldn't happen here, absent true threats.

"The mum-of-two is also accused of “deadnaming” the activist – a term which refers to the practice of calling a trans person by their old name.

She has been given a court injunction which prevents her from calling Hayden a man or referring to her “former male identity.”

High court papers, obtained by the Mail on Sunday, state that Mrs Scottow’s actions were allegedly motivated by Miss Hayden’s “status as a transgender woman.”

Now of course she might have been censored here, but she would never have been arrested.

[Rossami]

I'm not buying it. I am a lot more worried about censorship by the people with guns than I am about the people I am allowed to just walk away from.

[David Welker]

This is a false dichotomy.

I don't see why anyone should be censoring you in public spaces on a regular basis.

Sure, we all agree with some forms of private censorship. If you go into someone's house as a private guest and say things that offend the owner, they would be within their rights to kick you out. And shouldn't be subject to social opprobrium for kicking you out even if they are wrong. Their house is their private space, and we understand that people are entitled to take refuge from anything that is bothering them there. Contrast such personal spaces to social media, which is an impersonal virtual space, and I think the situation becomes significantly different.

[Dave_A]

Because the internet is not a public space - save for sites/systems owned/operated by government agencies.

The internet is almost entirely private property, on which the average user is a non-paying guest.

To argue that it should be different than 'being kicked out of a house' is to argue that big-ness/success causes a person/business to forfeit some of their rights... Which is unacceptable.

The same rules need to apply to reason.com or my personal 'talkaboutstuff.com' blog site as to Facebook or Twitter. And those rules should be 'we reserve the right to refuse service to anyone, for any reason not covered by the Civil Rights Act of 65 & the laws of the state(s) *in which our servers are located*'...

[Lee Moore]

European sympathies with free speech seem to have been remarkably consistent over the years, as this extract from the 1920 political program of a well known European political party demonstrates :

“23. We demand legal opposition to known lies and their promulgation through the press …

…Publications which are counter to the general good are to be forbidden. We demand legal prosecution of artistic and literary forms which exert a destructive influence on our national life and the closure of organizations opposing the above made demands.”

Though there does seem to be an increasing number of Americans too, who are sympathetic to the idea of protecting us from expressions that are “counter to the general good” or which “exert a destructive influence.”

The idea that opposing the suppression of wrongthink should of itself be grounds for cancellation doesn’t seem to be a fresh one either.

There is nothing new under the sun.

[Drewski]

Sorry, but my hypothetical European speaker is in Poland, not France, and just got three years imprisonment for blasphemy. Since we're generalizing to all of Europe, this proves that Europe does not actually protect free speech.

[Brett Bellmore]

I'm not aware of any European nation that actually has robust freedom of speech by American standards. They may punish private speech for different reasons depending on the nation, but they all do it.

[tkamenick]

The problem with the European approach is that it downplays the free speech rights of organizations - groups of people coming together for a common purpose - and thereby downplays the free speech rights of individuals at the same time.

"I'm against government censorship but I want government to force private entities to permit the use of their property to express views they don't like" is an incoherent position.

[David Welker]

The issue with talking about the so-called free speech rights of organizations is that what we are really talking about in that case is not really people “coming together for a common purpose” (which doesn’t require an organization) but really, the power of the “leaders” of the organization to divert the resources of the organization to amplify what in reality is their own individual speech.

And typically the “leaders” (each and every one of which is an individual) who exert influence and control over the organization are not even using their own property. They are using the property of others, where many of those others have views that conflict with the leader.

It ought to be remembered that for all the power of branding and marketing and even legal fiction which has apparently captured your mind and caused you refer to organizations as though there were somehow individuals, the underlying reality is different. Branding and marketing creates an illusion, not a reality. Coca-Cola cannot actually speak, because Coca-Cola lacks lungs and a functioning brain and even a physical body. The ideas that are said to be expressed by Coca-Cola are really the ideas of some individual with the influence among a particular hierarchy of primates said to be “employed” by Coca-Cola to allegedly speak on Coca-Colas behalf. If you ever think that Coca-Cola itself is speaking, you are believing in a sort of fantasy.

You are saying, “what about the rights of Coca-Cola,” to speak without really remembering what Coca-Cola actually is and remembering that Coca-Cola can’t actually speak. People employed by Coca-Cola can speak and are the ones actually speaking when Coca-Cola is said to speak. And so, your real question is to what extent should the employees of Coca-Cola be able to use the resources of shareholders (who may and often do disagree with Coca-Cola employees on all sorts of things) to amplify their individual voices.

[Davy C]

Seems to me that if the shareholders don't like it they can do something about it without the government getting involved.

[David Welker]

Regardless, when we talk about the so-called "free speech" rights of organizations we should be clear about what we are talking about.

The argument that someone has a right to spend as much of their own money as they like amplifying their speech is different than saying they have a right to spend as much of other people's money amplifying their speech.

[Dave_A]

The right to spend other people's money amplifying speech is constrained by the fact that those 'other people' can withdraw consent for the use of their money (by firing the management of the corporation) if they disagree with how it is used.

The government does not need to get involved with this - the shareholders can either remain silent (implicitly consenting to how management is spending their money) or they can change the management of their corporation....

[Dave_A]

Since Coca Cola can own property, Coca Cola as an entity has a right to determine for what purposes that property is used - including what sorts of speech are allowed on said property....

[XD]

what an enormous crock of horseshit lmao