David Inserra
A recent report by the Future of Free Speech highlights the sustained and concerning trend against freedom of expression across democracies. Studying the speech‐related actions of twenty‐two democracies across the world from 2015 to 2022, the report found that 78 percent of the major actions taken were to restrict expression. Worryingly, the number of annual speech restrictions put into place is growing almost every year, from nine in 2015 to forty‐five in 2022.
The study also looked at why and how these restrictions were put in place. Almost 20 percent of these restrictions were explicitly made based on national security or public safety, not including another nearly 6 percent due to COVID-19. Almost 18 percent of restrictions were to defeat hate speech, with another 10 percent to combat disinformation or defamation.
It is worth repeating that these aren’t speech restrictions in authoritarian states. These are infringements on freedom of expression in open democracies that are supposed to protect the rights of their citizens. Unfortunately, as we’ve seen in polling even in the US, an increasing amount of people often on both sides of the aisle believe that certain forms of expression are too dangerous to be allowed. As we see in this study, security, hate speech, and misinformation are common reasons why governments have justified restricting speech. But these terms are not simply defined as supporters for intervention often think.
This is clear beyond even this report as we look at the developments of 2023 and what could be coming in 2024. For instance, there is the Irish Incitement to Violence or Hatred and Hate Offenses bill. The legislation had passed the lower house of parliament earlier in 2023, but the government doubled down in its support for such legislation after a major immigration protest and riot. The government cited the need to stop hatred and ensure public safety after an Algerian immigrant stabbed several children and bystanders in downtown Dublin in November, promoting significant anger and rioting on the back of other immigration protests in 2022 and 2023.
The bill makes it illegal to communicate or behave in such a way that “is likely to incite hatred” against others due to their protected characteristics. Now it goes without saying that hatred is not good for our societies, but, as is always the challenge with hate speech laws, the government does a poor job of effectively defining what is “hate.” Indeed, this bill does not specify what is considered hatred. Even mere possession of materials that are likely to incite “hatred” could leave you in an Irish jail. The bill also makes it illegal to condone, deny, or trivialize genocides, war crimes, or other crimes against humanity.
Even if one were to applaud the bill’s intentions to decrease the incidents of hateful speech, this bill will curtail lawful expression that is naturally a part of debates over important issues of the day. For example, strongly worded opposition to immigration could be considered incitement to hatred under this proposal.
One wonders if comparing Donald Trump to Hitler might be considered trivialization of Nazi war crimes? Or if a Catholic priest preaching millennia‐old church doctrine that there are only two genders might be considered incitement to hatred? Or if support for Palestinian resistance or Israeli military action might be classified as condoning or trivializing war crimes or crimes against humanity?
Worryingly, the bill also makes it a crime to not provide police with your passwords or encryption keys if they come to seize your “reckless” memes. Individuals will be forced to speak and forced to incriminate themselves under penalty of imprisonment. Such undermining of encryption leaves nothing safe from government seizure and will be highly abusable by the government for any reason it considers a matter of public safety or security.
The law could also be weaponized against many people and not just by law enforcement. Any visitor, including a university speaker, business traveler, or even an average tourist, could be arrested for things they have said on social media that are interpreted to fall under this broad and vague hate speech law. Activist groups could abuse the law to encourage Irish law enforcement to bring cases against their political opponents or those with unpopular beliefs.
This is just the latest example of a concerning trend away from free expression in recent European laws and around the world. Other high‐profile restrictions on expression from 2023 include the EU’s censorship‐inducing Digital Services Act, which has been criticized by many human rights and free expression groups because of the harmful effect it will have on online speech. We also saw Denmark’s recent adoption of a sacrilege law, making it illegal to desecrate a religious text.
On the other side of the globe, the Australian government sought to advance a bill that would give government agencies increased power over the moderation of misinformation by social media companies that is “likely to contribute to” a wide array of “serious harms.” Under this standard, political opposition to COVID-19 lockdown policies, based on contested or emerging scientific evidence, could be labeled misinformation that contributes in some way to the serious harm of Australian public order or health.
Notably, Australia’s own human rights commission said the bill guaranteed that the government’s position could never be considered misinformation, and thus only dissenting views could be targeted. Even more explicitly, documents recently released under freedom of information laws revealed that the Australian Communication Minister pushing the bill told the Prime Minister that the legislation would allow her to direct investigations into whatever the government considered misinformation. While widespread pushback to the bill’s broad and vague censorship meant the bill is being revised, this revelation should frighten all Australians with the possibility of blatant political suppression of speech.
These blows to free expression are history repeating itself. After the development of new technologies that expand access to expression, those in power have historically panicked. The printing press, which raised literacy and dramatically increased the availability of ideas, played a huge role in the massive changes brought by the Renaissance and Reformation. Pope Innocent VIII issued a papal bull in 1487 calling for “regulation” to stop “the misuse of the printing press for the distribution of pernicious writings.” Similarly, the Ottoman Empire shunned the printing press for nearly three centuries.
The telegram, despite reducing communication time from days or weeks to seconds, was condemned in the New York Times as “superficial, sudden, unsifted, too fast for the truth… How will its uses add to the happiness of mankind?” The same leading journalists at the Times believed the telephone was harming the hearing of its users (or at least their manners), and that radios were a “loud and unnecessary noise.” And there has been no shortage of political figures condemning popular movies, music, and video games for changing values or as the cause of modern violence.
We must not accept this prevailing and pessimistic narrative and cave to calls for government intervention in this important value of a free society. Yes, such change is disruptive and some speech will make all of us uncomfortable. But giving greater information and expression to more people is a powerful force for human progress.
So, while we currently find ourselves in a free speech recession, we can and must remind our societies that a better future is built on the rich diversity that is only possible with freedom of expression.
