The Free Press
One of the first things you learn—or should learn—in Civics 101 is that there is no freedom at all without freedom of expression. Free speech is the essential freedom from which our other rights flow. It’s a right that we have taken for granted in the West.
But a new wave of hate speech laws has changed that. In English-speaking countries with long traditions of free expression—countries like Canada, Britain, and Ireland—this most basic freedom is under attack.
Take Canada. Civil liberties groups north of the border are warning a new bill put forward by Justin Trudeau’s government will introduce “draconian penalties” that risk chilling free speech. How draconian? The law would allow authorities to place a Canadian citizen under house arrest if that person is suspected to commit a future hate crime—even if they have not already done so. The legislation also increases the maximum penalty for advocating genocide from five years to life.
These punishments depend on a hazy definition of hate that Noa Mendelsohn Aviv, executive director and general counsel of the Canadian Civil Liberties Association, has warned could blur the line between “political activism, passionate debate, and offensive speech.”
The proposed law is in keeping with the Trudeau government’s broader hostility to free expression. I’ve reported before for The Free Press on this censorious turn in my country, from the crackdown on the trucker protesters to the backdoor regulation of online speech. And, testifying before the U.S. Congress in November, I urged Americans to treat Canada’s war on free expression as a cautionary tale. Increasingly, though, what’s true of Canada is true across the English-speaking world.
In Ireland, the government is pressing ahead with controversial new restrictions of online speech that, if passed, would be among the most stringent in the Western world.
The proposed legislation would criminalize the act of “inciting hatred” against individuals or groups based on specified “protected characteristics” like race, nationality, religion, and sexual orientation. The definition of incitement is so broad as to include “recklessly encouraging” other people to hate or cause harm “because of your views” or opinions. In other words, intent doesn’t matter. Nor would it matter if you actually posted the “reckless” content. Merely being in possession of that content—say, in a text message, or in a meme stored on your iPhone—could land you a fine of as much as €5,000 ($5,422) or up to 12 months in prison, or both.
As with Canada’s proposed law, the Irish legislation rests on a murky definition of hate. But Ireland’s Justice Minister Helen McEntee sees this lack of clarity as a strength. “On the strong advice of the Office of the Attorney General, we have not sought to limit the definition of the widely understood concept of ‘hatred’ beyond its ordinary and everyday meaning,” she explained. “I am advised that defining it further at this juncture could risk prosecutions collapsing and victims being denied justice.”
In Britain, existing online harm legislation means that tweeting “transwomen are men” can lead to a knock on the door from the cops. Now the governing Conservative Party is under pressure to adopt a broad definition of Islamophobia as a “type of racism that targets expressions of Muslimness or perceived Muslimness.”
Other parties have adopted this definition, and free-speech advocates in Britain worry that it is only a matter of time until a Labour-run government codifies the definition into legislation. To do so, they argue, would mean the introduction of a de facto blasphemy law in Britain.
These growing restrictions on speech across the Anglosphere are making the United States, with its robust First Amendment protection of speech, an outlier—though not for the Biden administration’s lack of trying.
In April 2022, the Department of Homeland Security announced the creation of a “Disinformation Governance Board” to “coordinate countering misinformation related to homeland security.” There was an immediate pushback from free-speech advocates, who pointed to the obvious fact that this new body would necessarily impinge on protected First Amendment rights. The administration dropped the idea a few months later.
Then, in September 2023, a federal court ruled that the Biden administration violated the First Amendment when they “coerced or significantly encouraged social media platforms to moderate content” during the pandemic.
Jay Bhattacharya was one of the scientists on the winning side of that case. Writing in The Free Press after the ruling, he recalled being grilled on the First Amendment during his citizenship test when he was nineteen. “The American civic religion has the right to free speech as the core of its liturgy,” he wrote. “I never imagined that there would come a time when an American government would think of violating this right, or that I would be its target.”
The trouble isn’t just the Biden administration.
Listen to Barbara McQuade, an MSNBC legal analyst and professor at the University of Michigan Law School. Her new book, Attack from Within, details “how disinformation is sabotaging America.” America’s “deep commitment to free speech in our First Amendment. . . makes us vulnerable to claims [that] anything we want to do related to speech is censorship,” said McQuade in an interview with Rachel Maddow last week.
A worrying number of Americans appear to be sympathetic to McQuade’s argument. A 2023 Pew survey found that just 42 percent of voters agreed that “freedom of information should be protected, even if it means false information can be published.”
McQuade has it backward. The First Amendment is a feature, not a bug; a strength, not a vulnerability; and the bedrock of American freedom and flourishing.
Across the English-speaking world, we once took our civil liberties for granted. Freedom of speech was understood as a blessing of democracy, not something that needed to be fought for every day. We thought that opaque and vague laws were used by those in power to punish their political or ideological opponents only in illiberal autocracies such as Russia or China. But we were wrong. And those now fighting censorship in Canada, or Britain, or Ireland, wish they had a First Amendment of their own to fall back on.
Rupa Subramanya is a writer for The Free Press. Read her piece “British Police ‘Are Giving in to the Mob’,” and follow her on X, formerly Twitter, @rupasubramanya.
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I'm confused. I thought The Free Press was opposed to hate speech directed at Jews on our best campuses and across the country. Is The Free Press truly on the side of protecting the speech it hates, or only the speech it doesn't dislike as much? Nat Hentoff and the ACLU have been for protecting all hate speech, including antisemitistic speech. All praise to Bari for printing the great Nadine Strossen's piece on how antisemitic speech is fully protected by the Constitution. But will The Free Speech fight "to the death" to protect antisemitic speech, which I hate as no doubt the wonderful Jews Hentoff and Strossen have? To me, one of the great moments in our Constitutional history was the ACLU's victory for the American Nazi march in Skokie decades ago. I totally oppose American Nazis and antisemities and white supremacists in general. That said, nothing is more important in America than freedom of speech and expression.
No freedom under the U.S. Constitution is absolute. That is true for freedom of expression, just as it should be true for the right to bear arms. The free speech exception is screaming "fire in the theater." The is speech that can cause harm to others. It would be disingenuous not to acknowledge that much of what former Pres. Trump says teeters right on the edge of this exception.