What Is Free Speech In America Gets People Jailed In France And Elsewhere

What Is Free Speech In America Gets People Jailed In France And Elsewhere

The government of French President Emmanuel Macron ordered the arrest of his opponent from the 2017 presidential election, Marine Le Pen.
Kyle Sammin
By

Many of President Donald Trump’s political opponents believe he is eroding civil rights in the country. Specifically, they see his contentious relationship with reporters and his threats to strengthen libel laws as a direct attack on our freedoms of speech and of the press.

Yet First Amendment rights in the United States are still stronger and better-protected than anywhere else in the world. That is not to say that we should not be sensitive to actual attempts to weaken them, but we should not forget that abuses of speech and press freedoms happen around the world every day, even in liberal democracies like ours, that would never be allowed by even the most Trump-friendly court in America.

Consider this hypothetical scenario: Hillary Clinton, disgusted at the Trump administration’s comparisons of Democrats to Russian totalitarians, tweets out pictures of the torture and murder victims who suffered at the hands of the Vladimir Putin regime. “THIS is Russia,” she writes next to an image of a brutally murdered dissident. Several more follow, with words to the effect that Russia wishes to divide American society against itself. Trump responds by ordering his 2016 opponent’s arrest, and she is charged with the crime of “circulating violent messages that incite terrorism or … seriously harm human dignity and that can be viewed by a minor.”

The president of the United States jailing a political opponent for what she says or publishes would be a source of outrage at home and abroad. Clinton’s supporters would pour into the streets to demand that the charges be dropped. Many Clinton opponents would join them, seeing the charges as an obvious attack on our freedoms as Americans, rights that we believe all men and women enjoy, and that no government has the power to curtail. Trump would be called a tyrant, and rightfully so.

It Didn’t Happen Here

This story has not played out in America, nor will it ever. But it is exactly what happened in France recently as the government of French President Emmanuel Macron ordered the arrest of his opponent from the 2017 presidential election, Marine Le Pen. After journalists drew comparisons between Le Pen’s party, the National Front, and ISIS, Le Pen tweeted out pictures of ISIS victims and pointed out how absurd it was to compare a political party in a democracy with a brutal theocracy that kills or enslaves all who disagree with its medieval strictures.

The Macron government’s response was to order Le Pen’s arrest on March 1. The crime—circulating the images—is punishable by up to three years in prison and a fine of €75,000 euros (about $92,000). That is to say: the president of France wants to jail and fine his political opponent for things she said in public.

To an American, this would be a breathtaking blow to some of the freedoms we hold most dear. In Europe, it is just one more example of the retreat from the values of the Enlightenment that once provided the intellectual backbone to the French Revolution and liberal democracy.

Home of the Free?

Incidents like this make it all the more absurd when organizations like Reporters Without Borders, in publishing their annual ranking of press freedom around the world, place France (#39) higher than the United States (#42). RWB also ranks the United States below Canada (#22), where press freedoms have also been degraded in recent years and free speech is limited by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Such limits include banning “hate speech,” a term so nebulous that a government can use it to justify censorship in nearly any case.

The freest country, according to RWB, is Norway, which also punishes “hate speech” with up to three years in prison. They define hate speech there as “threatening or insulting anyone, or inciting hatred or persecution of or contempt for anyone because of his or her a) skin color or national or ethnic origin, b) religion or life stance, or c) homosexuality, lifestyle or orientation” (Section 135a here).

Insulting people’s “life stance” will happen in political discourse in a free nation. Judge Roy Moore’s life stance came under attack in his recent attempt at election at the U.S. Senate. President Trump’s lifestyle is under continual attack from his opponents. That’s free speech in America. In Europe, it’s a crime.

Separation of Powers and the First Amendment

Our political system is called unfree by people who hate the president, but they fail to note the ways in which the American Constitution prevents any president from infringing our rights. Trump may, as RWB notes, have “declared the press an ‘enemy of the American people,’” but he has done little to make those words anything more than the complaints of a thin-skinned politician against a press that delights in tweaking his nose.

RWB also notes that the Obama administration “waged a war on whistleblowers who leaked information about its activities, leading to the prosecution of more leakers than any previous administration combined” and the absence of a press shield law. In this, RWB shows that they are less interested in rights than in special privileges for reporters.

This is the wrong way to understand Americans’ rights and our Constitution’s protection of those rights. Freedom of the press is not a class right for journalists. Instead, it is an expansion and amplification of the freedom of speech. Free speech is the right to say what you want; free press is the right to publish those opinions. They are freedoms that belong to all of us. If granting special rights to reporters would help our ranking on RWB’s charts, it would also make us a less equal society, privileging the actions of one profession over those of ordinary people.

In America, that universal right is protected not only by the First Amendment, but by the separation of powers that is essential to our liberty. If Trump sat at the head of a unitary government, one could imagine how the First Amendment might be ignored.

“Congress shall make no law … abridging the freedom of speech, or of the press” sounds absolute, but without pushback from the other co-equal branches of government, a president could easily read in restrictions like those in Canada or Europe. Banning “hate speech” could lead to regulations that severely restrict our rights to speak and publish about political events and ideas.

America’s freedoms are preserved by the independence of Congress and the courts. The president appoints judges, but does not control them, and the continuance in office of previous presidents’ appointees ensures that the bench is never completely dominated by one party. Congress, too, is independent of the president and more susceptible to changes in public opinion. These facts combine to make certain that our liberties are protected.

These freedoms are constantly under attack, even from those they protect daily. Just last month in The New Republic, writer Jeet Heer suggested that government should censor all political news—fake or otherwise—before an election. If that wasn’t shocking enough, Heer conceded that such a task would be logistically difficult, and called on his readers to consider whether “perhaps governments should outright ban Facebook and other platforms ahead of elections,” whether users are posting about politics or not.

It is chilling that a magazine considered a respectable source of center-left opinion would publish an article proposing that the answer to fake news is abolishing all news within a certain timeframe. Heer’s proposal never mentions the First Amendment and only hints that it may violate Americans’ natural rights, showing the idea to be illiterate as well as totalitarian.

We’ve Gotten Close to This In America

With that idea in mind, let’s imagine another hypothetical scenario: a group of people opposed to Hillary Clinton join to produce a film detailing all of the ways in which they think her election would harm the country. They publish this film to spread their political speech far and wide before the election. The government sues them to stop the film’s distribution and silence the criticism, denying that the First Amendment applies to groups like theirs.

Cases like Citizens United show that our government is no different from others in trying to stop political speech it finds distasteful.

Another tale from a European dystopia? Unfortunately, no: these are the facts from right here in America. They describe the facts in Citizens United v. FEC, in which the American government tried to censor a political message. Thankfully, our tale diverges from the European example above because our courts are independent and our Constitution protects free speech and the publication of the speech.

Cases like Citizens United show that our government is no different from others in trying to stop political speech it finds distasteful. It also shows that our country is different in that the government is prevented from doing so.

When free speech advocates speak of political opponents being jailed by power-mad presidents, they are said to be hyperbolic, imagining a slippery slope to an event that will never come to pass. But it came to pass in France this very month, in a democracy some think has greater press freedoms than ours.

Yet Clinton can tweet whatever she wants in America, and  Trump will never be able to “lock her up” for it. That is the genius of our Constitution, and the blessing of our Founding Fathers. Le Pen’s indictment should give Americans renewed cause to be thankful for the freedoms we enjoy and to understand how easily they may slip away.

Kyle Sammin is a lawyer and writer from Pennsylvania. Read some of his other writing at kylesammin.com, or follow him on Twitter @KyleSammin.

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