Abstract
In the US, money ultimately determines whose speech can be heard. In a climate of growing secrecy, what is under threat? Prominent campaigner
If you are looking for the heavy hand of the government censor – brutal, humourless and rigid – you will not find it here. The United States has the world’s most extensive legal protections for free speech and, for the average citizen, constraints on speech are a distant problem that affects places like China or the Middle East. But is the US really the land of the free?
Should another large-scale terrorist attack take place, it is safe to predict that support for free speech will wane once again
Three main factors regulate speech in the US: the law, money and public opinion. Of the three, the law offers freedom of speech the most solid support: First Amendment protections have steadily expanded throughout the last century. Public opinion, on the other hand, is fickle and easily swayed. But it is money that ultimately determines whose speech can be heard.
A 2002 survey conducted by the First Amendment Center notes that about 49 per cent of people surveyed said the First Amendment gives Americans too much freedom, up from 22 per cent in 2000 – a spike clearly connected to the 9/11 attacks. Yet the number has been steadily declining since and was down to 13 per cent in 2012. Throughout the dozen years in between, security concerns and civil liberties have been fiercely debated.
It is tempting to say proudly that the spiritual descendants of Benjamin Franklin have declared with him: ‘They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.’ But it is more likely that the true reason for the growing support for freedom has been the relative safety of those years. Should another large-scale terrorist attack take place, it is safe to predict that support for free speech will wane once again.
The government has been quick to capitalise on public fear: The ‘war on terror’ served as justification to drastically expand government secrecy. And, in spite of President Obama’s promise to create unprecedented transparency, the number of security clearances issued has only increased. In this climate of growing secrecy, how can one even judge whether the government is really protecting national security or simply hiding inconvenient facts? Indeed, classifying documentation of the Abu Ghraib abuses or the 2007 Baghdad airstrikes video appeared primarily to protect the government from being held accountable.
The June 2013 leak about the National Security Agency’s Prism surveillance programme made clear that, ironically, one of the things government secrecy occludes is the extent to which citizens’ own lives and communications are potentially subject to scrutiny – all done, of course, in the name of post 9/11 security. As a tech frontrunner, home to the largest global internet companies (inevitably wielding political clout over these companies), and with a Homeland Security Department commanding a budget of almost US$40bn annually (almost twice that is allocated to homeland security activities overall), the US occupies a leading position in expanding the capacity of the surveillance state. Its legal guarantees of privacy, which have never extended to non-citizens located outside the country, are failing domestically in the face of the now permanent fear of a terrorist attack. US citizens are learning what citizens of totalitarian regimes have known all along: the supposedly private sphere is, in fact, a panopticon where their every move and every word is visible to some highly secretive entity, which itself is neither transparent nor accountable. Expectations that the American public would not tolerate this violation of its right to privacy may be too optimistic. The stranglehold of fear appears to exceed the American public’s commitment to the rights to privacy and free speech. According to a recent PEW Research Center and Washington Post national poll, 62 per cent of Americans are willing to tolerate intrusions on personal privacy so that the federal government can investigate possible terrorist threats.
Along with fear of terror, public opinion is swayed by arguments claiming offence. In the 1980s, liberals came up with the moral imperative of political correctness, part of an effort to overcome sexism, racism and discrimination. But that gradually degenerated into a tool of censure levelled at others who dared transgress the rules of permitted speech. The more legitimate a complaint of ‘taking offence’ became, the more it was used as a justification to suppress dissent. Religious groups, for instance, have never hesitated to attack public museums for displaying work that is ‘offensive’ to their dogma. With offence being taken both left and right, it is easy to forget that nobody has the right to not be offended.
ABOVE: In taking steps to classify documents such as the Taguba report on abuse of prisoners in Abu Ghraib prison, the US government appeared to be attempting to protect itself
Credit: Zuma Press Inc/Alamy
But powerful as public opinion may be, it is ultimately money that drives matters in the US. The 1990s ‘culture wars’ – Congressional and public debates around federal funding for the arts – hammered home the message that ‘sponsorship is not censorship’ and that ‘taxpayers’ money should not pay for art that offends’. The implicit threat was that arts and cultural programming that offends legislators can lead to future funding cuts. Today this is a familiar issue at the local and state levels, which often forces institutions to self-censor.
ABOVE: Protest against the removal of artwork from a Smithsonian Museum exhibition after religious activists reignited the ‘culture wars’ over public funding of art, New York, 2010
Credit: Richard Levine/Alamy
The fraught relationship between money and speech also informs the heated debate about the role of money in the democratic electoral process. In 2010, the US Supreme Court lifted a ban on corporations, labour unions and associations using their treasury funds for direct advocacy on political issues. The court’s decision rested on the First Amendment right to free speech. But is money speech? And are corporations persons with full constitutional rights? Legal issues aside, it was widely felt that the decision would only increase the influence of big money upon elections and on elected officials.
The pressures of public opinion and money are ubiquitous and often subtle, but overt censorship in the US is unpopular – unless it affects minors. As minors are rarely invited to speak for themselves, the battle over what they should be exposed to has become an important chapter in the culture wars for political, religious and advocacy groups. A steady stream of attempts to remove books from the curriculum and school libraries professes to protect children from references to homosexuality, profane language, descriptions of sex, criticism of religion and racially offensive words. In battles over textbooks, school boards subject history and biology to political litmus tests. Filters on school computers regularly block access to social media platforms as well as educational sites containing information about sex and sexuality. And with every mass shooting tragedy there are renewed attempts at government regulation of kids’ access to violent video games in spite of the lack of evidence demonstrating a causal connection between game play and real life violence.
Now that everyone is on the internet (smartphones have almost closed the digital divide) can anyone keep kids away from what they want to see and play? The internet probably holds the best promise for freedom of speech for adults and young people alike: not only can we access unprecedented amounts of information, but we don’t need to own a newspaper or TV network to reach millions anymore. Internet intermediaries like Facebook or YouTube constitute our new public sphere.
Yet these platforms are owned by private companies, which determine their ‘community guidelines’ and also decide at what point these guidelines are violated: whether nudity is artistic and when it crosses the line into pornography, when criticism of Israel is political speech and when it becomes hate speech, and so on. Internet platforms are subject to both public opinion and government pressure, but they have no legal obligation to uphold freedom of speech. As a result, censorship is increasingly privatised. So far, in the competition for market share, the likes of Google have generally supported free speech, but as they attain more of a de facto monopoly, will this remain the case?
Many new democracies, like those in Eastern Europe, are following the US lead on the path to neo-liberalism and are busy throwing off the shackles of totalitarian control on speech, but they should beware the seemingly inevitable tentacles of public opinion, money and market mechanisms – they are much harder to confront head on than the old-fashioned authoritarian censor. The good news is that – so far at least – the debate on speech regulations in the US is a lively one.