Free speech run amok puts free society at risk

America's weakness is the supposed 'timelessness' of its Constitution, but other countries opt for pragmatism

On January 6, rioters stormed the US Capitol, causing considerable damage. AP

Who, or what, is to blame for the invasion of the Capitol in Washington last week? It would be easy to point to US President Donald Trump, who clearly incited the mob that brought death and desecration to the seat of American democracy; to those in the Republican Party who have cynically enabled him over the last four years; and to the loosened grasp on reality of many in the general public caused, in part, by the rise of the internet and social media.

But there is another culprit lurking largely unnoticed and unshamed that should receive just as much censure, and that is America’s attachment to free speech. It is an attachment so untrammelled and without nuance that it has reduced the truth to a lonely boatman sailing on an ocean of lies, libel and noxious fictions.

This is not to excuse Mr Trump, nor his backers in the Republican Party or his more credulous supporters.

But all of this has been made possible through the fetishisation of the First Amendment to the US Constitution, in particular its middle section: “Congress shall make no law… abridging the freedom of speech, or of the press.” It is the fundamentalist interpretation of these words, over many decades, that provided the foundations for Mr Trump to become “leader of the free world”, to tell false or misleading claims over his time in office – and still win the second highest vote tally in a US presidential election.

It is not that lies are unknown in other parts of the world. Several – such as the idea that 80 million Turks could take up residence in the UK if it remained in the EU – were propagated during the Brexit campaign (and I write that as someone who supported leaving). Prior to the 2018 election in Malaysia, where I live, so many whoppers were told about the then Barisan Nasional government – such as the claim that under them the country had been named one of the 10 most corrupt in the world, when no such list existed – that I fully supported the passing of Kuala Lumpur's recent "Anti-Fake News" law at the time.

But in America the falsehoods are on another scale entirely. John Kerry may well have lost the 2004 presidential election after a group calling themselves the “Swift Boat Veterans for Truth” told calumnies about his very honourable war record in Vietnam. The crucial difference is that the then Democratic contender may have had no legal recourse against these vicious smears – because, unbelievably, the First Amendment has been interpreted in successive Supreme Court rulings so broadly that libelling public figures and telling lies are, for the most part, protected as “free speech”. Any law trying to fight the scourge of fake news would be a complete non-starter in the US. No one even bothers trying to introduce one, so obvious is it that it would be ruled unconstitutional.

There is little appreciation of this in much of the world. In Britain, for instance, campaigners against local libel laws (much needed, in my view) regard the US as a nirvana of free speech. The truth is the opposite. After mendacity was elevated to new levels in the US during the Trump presidency, even some American commentators are beginning to query whether the First Amendment is fit for purpose in our digital world.

Thomas Edsall of the New York Times addressed this in a long and thoughtful essay earlier this month. What was noticeable, however, was that none of the academics Edsall spoke to really questioned the unlimited free speech the amendment shields. The comments of the Yale law professor Jack Balkin were typical: "The central problem we face today," he said, "is not too much protection for free speech but the lack of new, trustworthy and trusted intermediate institutions for knowledge production and dissemination."

This falls back on the old saw that in a marketplace of ideas, truth will prevail. But it evidently has not in the US – or not to the extent it needs to for any reason and fact-based political discourse to prevail and dominate. One survey found that while 43 per cent of Republican voters opposed the violent siege of the Capitol, an astonishing 45 percent supported it.

People died. The same fate, or being taken hostage, could have befallen Vice President Mike Pence and Speaker of the House Nancy Pelosi. And yet millions of Americans think that this assault on the “city on a hill”, as America often refers to itself, was justified because they genuinely – but falsely – believe the election was stolen.

All this is down to “free speech” that is not worthy of the name. Far from protecting US democracy, the First Amendment is now one of its gravest threats. If Americans wish to safeguard their Republic in the future, they must stop regarding their constitution as sacrosanct, and recognise that it is time to amend an Amendment that preserves the liberty of demagogues, racists, fantasists, hatemongers and would-be tyrants.

Sholto Byrnes is an East Asian affairs columnist for The National