SPEECH 

What is "speech"?

The dictionary defines it as "the expression of or the ability to express thoughts and feelings by articulate sounds"; "the communication or expression of thoughts in spoken words"; "exchange of spoken words: conversation"; "something that is spoken: utterance"; "a usually public discourse: address"; and "a formal address or discourse delivered to an audience".

What does it mean to say something is "free"?

The dictionary defines that as "not costing or charging anything".

If you put the two together, "free speech" would be the "cost" free "expression of thoughts or feeling by articulate sounds" or "cost" free "spoken words", "conversation", "utterance[s]", "public discourse[s] or "formal address[es]".

Costs, of course, are two-way streets.  

Generally speaking, a cost is what an actor is charged for the privilege of doing or buying something. If he is charged nothing, he is doing or buying something for free. Costs, however, are also the charges imposed on others by our acts. In that sense, one's acts are free only if, in addition to not requiring payment by us, they also do not impose costs on others.

In the United States, conservatives like Vice President JD Vance and Elon Musk claim to be "free speech absolutists". But they really aren't. A free speech absolutist would protect speech if it was both cost free to the speaker and cost free to the receiver.  If that speech imposed costs or burdens on the receiver, he would be open to mitigating or eliminating those costs or at least balancing them against the cost-free rights of the speaker.  

Vance and Musk, however, are not free speech absolutists in that sense. 

Rather they are "cost-free-to-the-speaker speech" absolutists. 

The costs imposed on all others are ignored. 

Last week in Munich, Vance upbraided Europeans for violating his version of speech absolutism.  

Given its Nazi past, Germany's penal code makes it illegal to publicly deny the Holocaust, prohibits the dissemination of Nazi or neo-Nazi propaganda (including sharing swastikas and wearing SS uniforms), and criminalizes hate speech that assaults individuals based on their race or national, ethnic or religious background. 

Also in response to that fascist past, Germany's two major political parties -- the Social Democratic Party (SDP) and Christian Democratic Union (CDU) -- have for years adhered to a policy of not aligning with far-right parties like the current AfD (Alternative for Germany) to form any national government.  

This so-called "firewall" against AfD participation  has been erected in response to AfD's extremism. That extremism includes state party leaders who have embraced Nazi slogans, minimized Germany's Nazi past and trivialized the Holocaust. It also includes AfD's participation in a secret conference in 2023 in Potsdam that was attended by at least one Austrian neo-Nazi and called for the mass deportation of "non-assimilated" Germans. In 2017, ten AfD-ers were part of  a Facebook group that posted a meme of Anne Frank's face on a pizza box labelled "oven fresh". 

In his speech in Munich last week, Vice President Vance criticized Germany for refusing to listen to or allow participation in its affairs by right wing groups like AfD and specifically said "there's no room for firewalls."

The immediate reaction to his speech  from Germany was . . .

Disgust.

As The New York Times reported, German Chancellor Olaf Scholtz "accused Mr. Vance of effectively violating a commitment to never again allow Germany to be led by fascists who could repeat the horrors of the Holocaust."  As Scholz put it, "A commitment to 'never again' is not reconcilable with support for AfD". He was then joined in his criticism by Friedrich Merz, the CDU's candidate for Chancellor.

For Germans, any speech flirting with its Nazi past, minimizing the Holocaust or allowing its national government to include parties that associate with neo-Nazis is not free.  Contrary to Vance's claim that democracy requires space and respect for AfD, Germans understand that the kind of thought and speech either accepted or even tolerated by AfD could ultimately kill the post-Nazi democracy they have carefully created and preserved over the last now almost eighty years. 

They understand this because, in the 1920s and early 1930s, this was the kind of speech Hitler and his supporters used to create the political foothold that ultimately resulted in the Weimar Republic appointing him Chancellor.  

It was also the kind of speech that destroyed that republic once the Nazis assumed power.

Democracies can commit suicide.

In the 1930s, Germany's did.

And for that reason, today's Germans do not permit speech that could resurrect that atrocity.

Closer to home, Vance’s demand that Germany remove its restraints on AfD has been seconded by Elon Musk . . .

Who . . .

When not taking an illegal blowtorch to either federal employees or Congressionally sanctioned spending . . .

Has actually endorsed the AfD in its campaign to win Germany’s current federal election. 

This, however, is just another manifestation of Musk’s one-way version of free speech. 

And like Vance’s, it is a version that ignores the costs it imposes on the rest of us. 

In October 2022, Musk acquired Twitter.

Within hours of doing so, he reinstated the suspended account of the Great Britain's  neo-Nazi Britain First party. He also reinstated the account of Donald Trump . . .

Which Twitter's prior owners had suspended in the wake of the January 2021 insurrection and Trump's attempted coup.

For Musk, this was just the beginning.

After he purchased Twitter in 2022 and re-branded it as X in 2023, the amount of disinformation and hate speech  on the site went up dramatically. Hate speech went up by half, transphobic and homosexual slurs by more than 60%. There are now three times more anti-Black tweets than there were pre-Musk. In November 2023 the EU stopped advertising on the site given the rise in hate speech on it, and in Ireland, as other social media took down hate speech that X refused to eliminate, the Prime Minister called for incitement to hatred legislation. 

In response, Musk said "the Irish PM hates the Irish people." 

Musk's one way view of free speech is enhanced in his specific case with the "more for me but not for thee" bonus that comes with being the billionaire owner of a large social media platform.

In July 2024, Musk endorsed Trump for president. In November, a study by the Queensland University of Technology in Australia found that, after that endorsement, Musk's posts on Twitter received 138% more views and 238% more retweets. Because these increases "outpaced the general engagement trends observed across the platform" (or, in other words, were much higher than any trend then associated with Trump or Musk generally), they suggested "algorithmic bias" (a suggestion confirmed by The Wall Street Journal and The Washington Post). The only thing that made this bias suggested rather than proven was the limited data to which the research team had access.

"More for me but not for thee" is the bonus awarded speech by those with money.  

It was created in 1976 when the Supreme Court in Buckley v. Valeo equated money with speech and was enhanced in 2010 when the Court in Citizens United eliminated the ban on corporate campaign contributions. Together, these two decisions have resulted in speech monopolies. Corporations and the billionaires that own Facebook, Instagram, Twitter and major mainstream media outlets like The Washington Post get to buy or control as much speech as they want.

The rest of us get to buy only as much as we can afford.  

The First Amendment to the Constitution states that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people to peaceably assemble and to petition the government for a redress of grievances." 

Though America (unlike Germany and many other European countries) takes an expansive view of the kind of speech protected, and a more or less total view of the kind of political speech protected, the Founders did not necessarily accept that view. During the Revolution, James Madison promoted the prosecution of Loyalists and the burning of their pamphlets, and while Madison was generating the Bill of Rights, Thomas Jefferson wrote him proposing this for the First Amendment:

"The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations."  

This would have imposed a limitation on the scope of protected political speech.

One reason this limitation did not make it into the actual text of the First Amendment was Madison's fear that moving beyond a statement of  "simple, acknowledged principles" would have made ratification more difficult. Madison wanted to avoid disputes that might arise later (and presumably be resolved later as well). 

Another reason, however, is that the architecture of political speech in the 18th century was relatively simple. There were printing presses, pamphlets, some newspapers and public meetings or assemblies. There wasn't telegraphy, television or the internet and the cost of participation was de minimis.  Simple principles would do because the universe of likely speech was relatively small and monopolized by no one.

None of that is true today. 

In fact, the contrary is the case. 

The philosophical foundation for America's expansive view of free speech is the view that truth and falsehood compete in a marketplace of ideas for which no regulation is needed and any imposed likely to do more harm than good.  Vance and Musk support that view and believe (falsely) that it is (or should be) shared by western democracies generally. 

In truth, however, instant mass communication through the internet on various social media and other platforms is now routine and a handful of billionaires (among them, Musk himself)  control those outlets. And the consequence of their world of one-way free speech and the Supreme Court's of monetized speech is a uniquely dysfunctional marketplace of ideas. 

The speech protected is largely the billionaire's own, whether that billionaire is Elon Musk, Jeff Bezos, Mark Zuckerberg . . .

Or Donald Trump. 

And truth does not always get to compete in that marketplace.  

In fact, as the accession of Trump . . .

The debased acquiescence of Musk, Zuckerberg and Bezos. . . 

And the historic example of Weimar Germany . . .

Prove . . .

It can easily be overwhelmed.