“Free speech’interpretation always reflects power dynamics”

Cas Mudde is the Stanley Wade Shelton Professor in the School of Public and International Affairs at the University of Georgia and Professor at the Center for Research on Extremism (C-REX) at the University of Oslo. He is the author of, among others, Populism: A Very Short Introduction (2017) and The Far Right Today (2019). He is a GuardianUS columnist, and a shareholder of Voxeurop.          

Voxeurop: What are the main differences between the concept of free speech in the US and in Europe?

Cas Mudde: There is an increasing politicisation and consequent misunderstandings about the concept of “free speech” – fueled strongly, but not exclusively, by the far-right. The idea of freedom of speech is, fundamentally, about the relationship between citizens and the state. It is about state power and/or citizen’s rights. The concept of freedom of speech holds that the state should not prohibit speech of its citizens. It is not about private institutions or about individual citizens limiting each other’s speech. In other words, if a private citizen or organisation limits speech in their private setting, this is not a free speech issue. Not inviting someone to give a commencement speech at a university or not publishing a column in a newspaper is not a free speech issue. That person’s “free speech” is not limited. What is limited is the venues where that person can express their opinion. But there is no fundamental right to publish an op-Ed in the New York Times or give a commencement speech at Harvard University. It becomes, fundamentally, a free speech issue when the state prohibits certain speech, i.e. when there is no space where you can legally express that opinion. 

It is not so much that the concept of free speech is different in Europe and the United States but rather that the interpretation of the idea of free speech is fundamentally different. In the US, the idealised understanding of free speech is absolute, meaning that it should not be limited based on its content. As far as there are limits allowed, they tend to be based on the consequences of that speech, which is usually considered within specific contexts. The most famous example is shouting “fire” in a crowded cinema. Shouting “fire” is not in and by itself prohibited, but if you shout it in a crowded cinema (while there is no fire), it is prohibited. The idea is that the content of the speech itself is not genuine and the potential effects are negative. At the same time, walking in Nazi uniforms through a mostly Jewish neighbourhood is not prohibited, even if it has negative effects, presumably because (1) the message is genuine (as in, it is expressing a truly felt opinion) and the negative effect is not physical. 

In Europe, on the other hand, the idea of free speech has always been understood to exist only within certain limits, in terms of content. For instance, for a long time the Church or the King could not be criticised – in fact, even today, we still have such laws on the books in several European countries. After the Second World War, antisemitism and later other forms of prejudices were prohibited – while support for communism was also, officially or unofficially, limited in many countries. 

Interestingly, the limitation of free speech is often denied through rhetorical deflections like  “racism is a crime, not an opinion” – technically, racism is a crime in most European countries, but it is also an opinion that was criminalised. It is important to note that while, theoretically, we distinguish between the US model of absolute freedom of speech and the German model of “militant democracy” that prohibits “anti-democratic” speech, these are ideal types, which do not exist in reality. For example, in the US, “support for terrorism” is prohibited, albeit enforced very differently with regard to, say, Jihadist terrorism and anti-abortion terrorism. And in Germany, as in most western countries, discrimination based on ethnicity and religion is prohibited, yet much islamophobia goes unpunished these days.

Why such differences and where do they come from?

The intellectual origins are the same and support for “free speech” is considered a foundational democratic and liberal value in both Europe and the US But, as said, the main difference is in the interpretation of free speech. I think this has a lot to do with the relationship between citizens and the state, which is fundamentally different in Europe and the US. In the latter, political culture is fundamentally distrustful of the (federal) state. Throughout US history, with some exceptions (like the New Deal period), the federal state has always been associated with the threat of overreach, ending in tyranny. This is still the main foundation of support for the Second Amendment, i.e. the right to keep and bear arms, allegedly to protect yourself/the people against a potential (federal) tyranny. At the same time, the US has always had a very populist culture, in which “We the people” are seen as pure and morally superior to “the elite” (notably the federal political elite). 

There is no fundamental right to publish an op-Ed in the New York Times or give a commencement speech at Harvard University

In contrast, particularly Western Europe knows a long history of distrust of “the people”, which was reflected in the very cautious and slow expansion of political power and suffrage and was strengthened by what I refer to as the Weimar Myth, the idea that the German people brought Hitler to power democratically – in reality, Hitler’s NSDAP received “only” one third of the votes and they were brought to power by the conservative political elite, who formed a coalition with them. This myth strengthened the distrust of the people by the political elites, best captured in the “militant democracy” of (West) Germany, which can be understood as a kind of guided democracy: people are free to vote but can only choose between options that are approved by the political elites – formally, “anti-democratic” parties are illegal in Germany. 

So, the underlying idea is, we cannot trust the German people to not elect another Hitler again, so we should just not give them that opportunity. This paternalistic form of democracy was fundamental to West European politics in the 20th century but has come under pressure as a consequence of the more horizontal relationships in society, strengthened further by core ideas of neoliberalism and populism, which both see the citizens – as either “rational customers” or “pure people” – as superior to the either “irrational/inefficient” or “corrupt” politicians.

What are the political consequences?

It is hard to isolate the consequences of the implementation of the idea of “free speech” because they largely reflect a broader political culture. One of the consequences, though, is that prejudices are more overtly expressed in the US, even if dog whistles and “colorblind” institutional discrimination were also the norm in the US before Donald Trump came to power. Obviously, in Europe prejudices are also expressed, both covertly and overtly, but less extremely and overtly, because people potentially risk an arrest and conviction. Moreover, in Europe there is an endless debate about “where is the boundary of free speech?”. And you see that these boundaries are always changing. 

After the Second World War, there was some sensibility to antisemitism in many countries, but not so much towards racism or homophobia. This changed in the 1980s and 1990s, when the expression of many prejudices became a crime under new anti-discrimination legislation. While there was always some opposition against this, it became more profound and influential after 9/11, which brought the mainstreaming of islamophobia to most European countries. In essence, then, the way “free speech” is interpreted legally always reflects the power dynamics of that time… those who hold power will ensure that their speech is free.

Who is benefitting the most from freedom of speech in the US and in Europe, and does it have a social utility?

At a fundamental level, I believe everyone profits from freedom of speech, as being able to express your beliefs is essential to being a citizen and ultimately benefits pluralism and liberal democracy. Given that leaders should represent citizens in a democracy, they need to know what the citizens think and want. Freedom of speech is essential to that. Pluralism also benefits from free speech, as it makes it easier to know the different values of the different groups in society. It is the same as with a personal relationship, which also profits from open communication and is weakened by keeping secrets. That being said, societies and relationships are not the same, as societies are much more complex and its relationships much more indirect and remote.

Which system is the most beneficial for citizens and society in general?

Not to chicken out on this question, but this depends on which values you prioritise in a society. I think, in an ideal situation, we have a society with free speech that does not lead to personal trauma or political violence. So, purely theoretically, true free speech is the most beneficial for citizens and society. But free speech works best in a truly democratic society, where citizens have equal political power, which ideally would also mean that they have equal access to the same audience. This, of course, does not exist. We live in fundamentally unequal societies, in which the speech of certain citizens weighs much heavier than that of others – because of certain privileges (class, gender, race, rhetorical skills) and, related to that, media access. But the key question is whether the answer to this inequality should be, fundamentally, less free speech or less inequality. We often choose the former because achieving the latter is much more difficult.

Would something like fair speech make sense, and what would it look like?

“Fair speech” sounds really good but presumes an objective understanding of what “fair” means, and this does not exist. Fairness is deeply ideological, based on ideological (and religious) assumptions of what is good and bad. Hence, “fair speech” would, at best, represent the dominant interpretation of “fairness” at that time. At a fundamental level, that is not much different than the free speech we have today, which represents the dominant interpretation of free speech at this moment. Another concept you see used in the free speech debate these days is “civility”, i.e. that argument that speech should be free but “civil” – and the idea, implicit or explicit, that “uncivil” speech should be prohibited. But who determines what is “civil”? In reality, it is the political elite that defines “civility” and that uses the concept to prohibit speech (and actions) that fundamentally threatens their power.

Is freedom of speech levelling the social and political plain field, or is it fostering imbalance in political and social participation, providing more traction to minority but better funded or connected ideas? 

Like most liberal freedoms, freedom of speech is about giving everyone equal access, which means that it does not by itself challenge the existing power relationships. But, political oppositions can use free speech to challenge the political elites, and even topple them. At the same time, political elites can use free speech to establish and even extend their power. And because political elites often have more power, formal and informal, they can use speech more effectively. Still, without free speech the possibility to challenge is even more limited. So, in the end, I believe that free speech is essential for good representation. It provides citizens the opportunity to express their wishes to their leaders and help to hold them accountable. Still, it guarantees neither and for free speech to function most democratically, we need a very egalitarian society.

Many, like Elon Musk, advocate for unlimited free speech for all, but seem unhappy with some of the consequences, like call for murder and for violence when directed towards their side, and call for limitation to freedom of speech in these cases – like it is in most European countries. How do you explain this attitude?

To be honest, this is not specific to the far-right. I have been arguing for free speech for decades and have rarely met a person who didn’t pretend to also support free speech but then also wanted certain speech prohibited. This included conservatives, liberals, socialists, and the far right. I think most people – and particularly “intellectuals” – support free speech because they themselves want to be able to say anything they want. Many who defend it most loudly also have a lot of privileges, which means that they rarely bear the brunt of free speech.

Free speech works best in a truly democratic society, where citizens have equal political power, which ideally would also mean that they have equal access to the same audience

They are not targeted by the most prominent speech. And when they are targeted, or see speech that they dislike or consider dangerous, they want it banned or at least restricted. But they don’t want these measures to impact their own speech. I also think that free speech has become something everyone wants to subscribe to – like being fair, hard-working, tolerant – it has become part of our positive self-image. How can you be a good democrat if you don’t support free speech?

What is the role of the media with respect to freedom of speech? What is the relationship with professional ethics?

In essence, free speech is about the relationship between the citizens and the state. So, with regard to the media, this would at the most relate to public media. Private media, which is the vast majority of at least printed media, are free to choose which speech they want to promote and which not. I am baffled by how particularly liberal media feel a need or even an obligation to give voice to the far right, while they also stress that they support democracy and that they consider the far right as a threat to democracy. Moreover, most of these “free speech” debates are highly problematic. For instance, some media argue that you should interview far-right politicians or publish their op-Eds because citizens should know these opinions, given that they are part of the political debate. Of course, people should know about them, but given that the media themselves consider the far right a threat to the core values they defend (i.e. liberal democracy, free press), and they often also argue that various far-right actors act in bad faith (i.e. lie), there is a very good reason not to take the far right at their word. 

So, instead of giving them a platform, and have them communicate directly to the reader, write about them, analyse their ideas, and fact-check their claims. Moreover, most media are hypocritical, giving voice to “popular” far-right actors and ideas to give “everyone” a voice, but then excluding Jihadists, orthodox Christians, neo-Nazis, etc. Yet, these ideas also exist in society. But that speaks to the fundamental problem about limiting free speech… where is the boundary? And that is always a political question, which will always reflect political power. 

🤝 This article is published within the Come Together collaborative project.