The Right to Offend – US Supreme Court Twice Champions First Amendment; EU Continues ‘War on Hate Speech’

Monday the 19th 2017 marked a big day for the First Amendment of the US Constitution as two cases were ruled in favour of free speech absolutism.

In the first case, Matal vs Tam, the judge determined that it was unlawful for the government to refuse registering businesses with names that may be construed as offensive so some groups. The case became notorious for the repercussions surrounding football team the Washington Redskins, which some native Americans consider offensively named. However, the example in question concerned an Asian-American man called Simon Shiao Tam who was unable to register his ironic band name ‘The Slants’ with the US Trademark Office.

In the second case, Packingham v. North Carolina, concerned a State Law which barred registered sex offenders from using any social media that children are permitted to use. The Supreme Court unanimously agreed that the law violated the free-speech rights of sex offenders.

Both cases will serve as important precedents in future cases surrounding free speech on social media platforms such as Twitter.

In Matal vs Tam, Justice Samuel Alito advocated the ‘right to offend’ as an important legal framework in the public sphere. He stressed, however, that workplaces, university campuses, social media companies etc. are free to set their own legal standards.

In Packingham v. North Carolina, Justice Anthony Kennedy espoused the idea that blocking sex offenders from social media was akin to blocking them from full range of free speech options available in public spaces like parks and street corners.

The two rulings underscore the US Supreme Court’s commitment to the notion of free speech absolutism. America was always unlikely to fall into the same ethical quagmire as the European Union’s all powerful and unelected branch, the European Commission, and their war on ‘online hate speech’.

Working with social media giants Facebook, Twitter, YouTube and Microsoft, the European Commission last year unveiled a code of conduct that will ensure ‘online platforms do not offer opportunities for illegal online hate speech to spread virally’. Upon receiving a ‘valid removal notification’, IT companies will have to remove or disable access to the content in less than 24 hours.

The ‘code of conduct’ in question was drafted without any public consultation.

Speech that ‘incites violence’ is illegal across the board – US, EU or anywhere else. Few would argue with this.

But the EU’s initiative goes one further and aims to actively prosecute those whose speech is deemed to ‘incite hate’. This loose wording has allowed proponents of this ‘code of conduct’ to use state power to remove people from Twitter who simply disagree with current EU migration policies.

To be clear, many of the views expressed by those indicted under this initiative are deeply unsavoury, and companies such as Twitter have every right to remove polemical material at their own discretion. However, the state has crossed a line that should never be crossed when they coerce companies who operate in the European Union to sign a statement declaring that they will commit to ‘promoting independent counter-narratives’ to contentious viewpoints.

The National Secular Society (NSS) of the UK warned that the EU’s plans “rest on a vague definition of ‘hate speech’ and risk threatening online discussions which criticize religion.” It added:

“The agreement comes amid repeated accusations from ex-Muslims that social media organizations are censoring them online. The Council of Ex-Muslims of Britain has now begun collecting examples from its followers of Facebook censoring ‘atheist, secular and ex-Muslim content’ after false ‘mass reporting’ by ‘cyber Jihadists.’ They have asked their supporters to report details and evidence of any instances of pages and groups being ‘banned [or]suspended from Facebook for criticizing Islam and Islamism.'”
A coalition of free speech organizations, European Digital Rights and Access Now, announced their decision not to take part in future discussions with the European Commission, saying that “we do not have confidence in the ill-considered ‘code of conduct’ that was agreed.” A statement warned:

“In short, the ‘code of conduct’ downgrades the law to a second-class status, behind the ‘leading role’ of private companies that are being asked to arbitrarily implement their terms of service. This process, established outside an accountable democratic framework, exploits unclear liability rules for online companies. It also creates serious risks for freedom of expression, as legal — but controversial — content may well be deleted as a result of this voluntary and unaccountable take-down mechanism.

“This means that this ‘agreement’ between only a handful of companies and the European Commission is likely in breach of the EU Charter of Fundamental Rights (under which restrictions on fundamental rights should be provided for by law), and will, in practical terms, overturn case law of the European Court of Human Rights on the defense of legal speech.”
The phrase ‘Orwellian’ is tossed around far too liberally nowadays, but is nevertheless appropriate when the government tiptoes into a position from where they can push or remove narratives in internet debate to suit a given agenda.

Most damningly, it represents a precedent that cannot be reversed; a gift in waiting for any future unscrupulous wannabe tyrant.

We can feel relieved that it is the US who have enshrined the protection of free speech and the EU who are gnawing away at it; and not vice versa.

The US have created a monster in modern state surveillance infrastructure – government agencies who trawl through the world’s web traffic at leisure . Meanwhile, the EU do not harbour the same ambition, barring rogue member the UK and their advanced GCHQ agency, who will soon be leaving the European Union.

If NSA voyeurs were given free reign to police the net rather than just snooping, US civil liberties would be critically endangered.

Fortunately, a Supreme Court committed to First Amendment orthodoxy stands in their way.

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