Which country has the most generous free-speech protections?

September 15, 2017

Dear Cecil:

Just wondering which country has the loosest free-speech laws. I imagine there has to be one with even fewer limits than the U.S., right?

Cecil replies:

The notion of American exceptionalism finds itself on thin ice nowadays, so congrats for locating one element of the ol’ national identity, anyway, that remains sui generis: the U.S. constitution is generally regarded as providing the most robust speech protections around. Being unique isn’t necessarily a virtue, of course, and in the eyes of much of the world the United States’ conception of free speech comes across as rather extreme — the legal scholar Frederick Schauer, a former First Amendment professor at Harvard, calls us a “recalcitrant outlier to a growing international understanding of what the freedom of expression entails.”

Other countries, even (or especially) liberal democracies, have figured out ways to regulate speech for what they deem to be the overall social good — obviously sometimes a contentious concept. In 2012, for instance, France preemptively banned public protests against an online video perceived to be anti-Muslim, citing fears of violence. (It’s also outlawed burqas — uncovered faces help everybody “live together,” France argued before the European Court of Human Rights, which agreed.)

But other restrictions are less divisive. Indeed, an understanding that some speech regulation is socially useful is just sort of baked into a lot of European governance, such that NPR did a story tied to that 2012 protest ban on how U.S. notions of free speech can be “perplexing” abroad. Most instances where other democracies limit expression are situations in which they’re trying to stem hatred. Schauer writes, “There appears to be a strong international consensus that the principles of freedom of expression are either overridden or irrelevant when what is being expressed is racial, ethnic, or religious prejudice.” He mentions Germany and Israel, for instance, both of which have banned the Nazi party as well as other groups that promote racial superiority; Germany, France, and Canada, which criminalize Holocaust denial; and a long list of countries that make it a crime “to engage in the incitement to racial, religious, or ethnic hatred or hostility.” For much of the world, per Schauer, such utterances “are widely accepted as lying outside the boundaries of what a properly conceived freedom of expression encompasses.”

Again, inciting hatred is the key concept here. Meanwhile in the U.S., it’s the incitement to harm or violence that marks the bounds of the First Amendment. (In the early ’90s the U.S. was one of only 12 countries out of 129 that objected to a United Nations convention calling for laws criminalizing speech “based on racial superiority, or hatred, [or] incitement to racial discrimination.”) You’re probably aware of at least one of the little jurisprudential holes carved out over the years: the famous shouting-fire-in-a-crowded-theater standard, a non-binding example set forth by Oliver Wendell Holmes in a 1919 Supreme Court opinion holding that citizens’ speech could be restricted only if it posed a “clear and present danger.” The Court raised the standard a half century later with a requirement of “imminent lawless action” before speech could be criminalized — in the case in question, an Ohio Klan leader had been arrested after advocating attacks against Jews and black people.

Generally, U.S. courts have tried to identify where speech might tip over into violence and set its limits there, while giving most other expression a wide berth. And folks here seem to like it that way: per a 2015 Pew study, 77 percent of Americans “support the right of others to make statements that are offensive to their own religious beliefs,” and 67 percent were OK with statements “offensive to minority groups” — higher numbers than seen in any other nation surveyed.

But what of freedom of speech’s close First Amendment cousin, freedom of the press? Here’s where we don’t do so hot. The watchdog group Reporters sans Frontières ranks countries in its annual World Free Press Index, and its most recent report placed the U.S. at number 43 of 180 countries — down from 41 in 2016. The report cited the arrests of journalists at protests, the outgoing Obama administration’s prosecutions of leakers, and of course the gang recently installed in Washington, not known for their love of constitutional norms and especially unaffectionate toward the fourth estate. Who’s got the world’s freest press? Norway, lauded by RSF for a rarity of violence and political pressure directed at journalists, and for its strong laws limiting consolidation of media ownership. Nordic countries hold the first four spots on the 2017 list.

Which may square with a theory Schauer offers for America’s free-speech exceptionalism: our love of personal liberty outweighs all. European social democracies, as exemplified in Scandinavia, strike a different balance between communal value and individual rights, so it makes sense they’d outshine the U.S. when it comes to protecting institutions like the media, seen as broadly benefiting society as a whole. What we lack in strong institutions, by contrast, we make up for in unaffiliated racist cranks exercising their right to publicly say more or less whatever they want. I guess that’s the good news.

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