Free Speech in a Bind

N ews from Germany: The far-right political party AfD (Alternative für Deutschland) was put under surveillance by the German government’s domestic-intelligence service as a possible threat to the state. The party’s legally independent youth wing already was under such surveillance. AfD has challenged the matter in court and the surveillance has been delayed, but the government intends to pursue its case, which ultimately could result in the party’s being disbanded under German law.

This may strike Americans as heavy-handed. We do not ban political parties here. In much of Europe, they do.

Germany’s Federal Office for the Protection of the Constitution (BfV) acts as a national ideological snoop, though it has no formal police powers of its own. It keeps its eye on verboten ideologies and rhetorical excess. Certain neo-Nazi, far-left, anti-immigrant, and Islamist organizations and communications are forbidden in Germany, and though the law is not enforced with great severity, a German citizen can go to prison for possession of a banned book. Rather than trust the voters to reject extremism at the polls, Germany simply prohibits those holding certain views from contesting elections at all.

(Even in Germany, sometimes laughter is the best medicine: Germany’s answer to Representative Beth Van Duyne got laughed out of town when he promised to ban Arabic numerals.)

The banning of books and the legal prohibition of political parties — and political ideas, and private associations — is a serious business, one that Germany and some other European countries justify on grounds of streitbare Demokratie, or “militant democracy,” a constitutional principle rooted in Germany’s experience with national socialism, when anti-democratic forces came to power through democratic processes. Under streitbare Demokratie, the state has the legitimate power to take anti-democratic and illiberal actions against political factions or other targets judged to be a threat to the liberal-democratic order itself.

Which brings us to . . .

News from Spain: The Spanish rapper Pablo Hasél, a critic of the monarchy, has been arrested over controversial tweets. One of the accusations against him is “glorifying” the Basque terrorist organization ETA (Euskadi Ta Askatasuna), which murdered hundreds of people in a bloody, decades-long campaign before disbanding in 2018, and which has hundreds of members still locked up in Spanish prisons. Even Hasél’s defenders concede that he broke the law, but argue that the law is itself unjust and repressive: “If these articles of the Criminal Code are not amended, freedom of expression will continue to be silenced and artistic expression will continue to be restricted,” Esteban Beltrán of Amnesty International tells NPR.

It might seem to the American observer that insulting the monarchy and praising a murderous terrorist outfit are very different kinds of offenses (Americans have been known to insult a monarch when they aren’t slavering over wayward royals), but in fact the Spanish law that prohibits the glorification of terrorist groups is the same law that prohibits insulting the monarchy — the Public Security Law. The same law restricts unauthorized protests and imposes large fines for filming police officers at work. The law’s authors argue that these measures are necessary to ensure basic public order.

The Spanish argument for public security is very much like German argument for streitbare Demokratie — the state must act invasively in these matters, because civil society and the people at large cannot be trusted to respond to provocations and extremism in the appropriate way.

In the United States, we have a First Amendment that is supposed to prevent that sort of thing, and it works most of the time. But not all of the time: The Obama administration assassinated a U.S. citizen it labeled “the Osama bin Laden of Facebook,” and then after the fact cooked up a preposterous rationale for its actions. Left-wing activists have raised the possibility of prosecuting or banning Fox News on the grounds that it incited the January 6 assault on the Capitol. Democrats in elected office have pressured cable companies to dump Fox News and other right-wing content. Kamala Harris and Xavier Becerra made mincemeat of the First Amendment in California, as Andrew Cuomo and his minions did in New York. And though the main actors in the United States are generally corporate rather than governmental, we now routinely disappear books, websites, and other kinds of speech, usually political, on public-safety grounds.

I wrote a book about the intersection of streitbare Demokratie-type thinking with mob politics, in which I argue that the public-safety rationale, to the modest extent that it is ever legitimate, will always be abused. The temptation to simply define one’s political opponents out of the political bounds is too great. On Monday, public safety demands the prohibition of Mein Kampf, and on Tuesday it demands the prohibition of books that take a dissenting line on transgender issues.

While there are important differences of both law and principle, Amazon’s decision to ban a book constitutes a much more effective and ruthless method of suppression: The minor effect is that you’ll have to go somewhere else to buy Ryan Anderson’s book, but the major effect is that in the future publishers simply will not bring out such politically risky books in the first place — it’s one high-profile intellectual murder followed by a hundred thousand intellectual abortions that will never be remarked upon.

I have never believed that the U.S. government — or any other government — has the legitimate right to ban books or political parties, no matter how loathsome they may be. I do not expect that belief to change. What has changed for me is that I no longer have my old confidence that the American people can be relied upon to sort these things out responsibly and intelligently in private life. Why? The country’s largest bookseller is a book-banner, Senate Democrats have attempted to repeal the First Amendment, Marjorie Taylor Greene is in Congress, and Republicans attempting to overturn the results of the 2020 presidential election sacked the Capitol in January.

When you cannot trust the government or the governed, you are in a pickle. And so we can probably expect to see more Americans demanding more invasive and repressive measures based on streitbare Demokratie arguments — and more jackasses giving them an excuse to do so.