Recently we discussed how decades of anti-free speech policies in Germany have reduced the expectations of citizens in that country to the level of an authoritarian regime. A survey, conducted by the Institut für Demoskopie Allensbach(and published in the Frankfurter Allgemeine Zeitung) found that only 18 percent of Germans feel free to express their views in public. Undeterred, leaders have called for greater limits on free speech during election periods — a concept that would normally be viewed as counterintuitive outside of the new European model. In addition, Germany just announced that it would expand anti-free speech laws even further to criminalize the burning of flags — an expression of free speech protected in this country.
For years, we have discussed the unrelenting attacks on free speech in Europe with the expansion of hate speech laws and the general criminalization of speech, including international speech crimes. France has also been a leader in the crackdown on free speech. Most concerning is the call for European style speech limits in this country.
German lawmakers have been pushing for a flag burning crime since 2017 when Israeli flags were burned at a protest in Berlin. As always, the response to seeing offensive forms of speech in Germany is to make it a crime. The new law would impose fines or prison sentences on those who burned a national flag. Burning the German flag is already a crime.
Junior Justice Minister Christian Lange was the perfect spokesperson for those who oppose free speech of those with whom they disagree. He said simply “We will not allow these symbolic acts of hatred and contempt to continue.” Problem solved. If you find the speech of others to be contemptible, you throw them in jail and threaten any other speakers that they will be arrested if they utter thoughts deemed offensive to the majority.
President Donald Trump has called for the criminalization of flag burning. However, in the United States, the destruction of the flag remains a protected form of free speech. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court voted 5-4 that flag burning was protected speech under the First Amendment to the United States Constitution. It is considered one of the core cases defining free speech in the United States. Brennan was joined by Marshall, Blackmun, Scalia, and Kennedy (Kennedy wrote a concurrence). I agree with the decision as did conservatives like Scalia. Justice Anthony Kennedy wrote a powerful concurrence where he famously stated:
“For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”
What is most frustrating is to see these legislators bask in the glory of suppressing free speech. CDU justice committee spokesman, Jan-Marco Luczak, declared flag-burning “should not be allowed in civilized countries.” Actually, what defines a civilized country or at least a country with civil liberties is free speech. Luczak longs for the civilized values of Iran, Russia, China, and other countries that impose majority values on dissenting voices.
I readily admit to following the classic liberal view of free speech. The solution to bad speech — even hateful speech — to more speech. It is free speech that allows people of conscience to contest the flawed and hateful ideas of bigots. Germany has proven the fallacy of changing minds through threatened prosecution. While I am certainly sympathetic to the Germans in seeking to end the scourge of fascism, I have long been a critic of the German laws prohibiting certain symbols and phrases, I view it as not just a violation of free speech but a futile effort to stamp but extremism by barring certain symbols. Instead, extremists have rallied around an underground culture and embraced symbols that closely resemble those banned by the government. I fail to see how arresting a man for a Hitler ringtone is achieving a meaningful level of deterrence, even if you ignore the free speech implications.
We discussed how Germany is extending its criminalization of speech to the Internet. Germany imposed a legal regime that would allow fining social networks such as Facebook up to 500,000 euros ($522,000) for each day the platform leaves a “fake news” story up without deleting it. Governments have finally found a vehicle to get citizens to allow them to curtail or chill speech — ironically in the name of facilitating “real news” or “truth.” It is perfectly Orwellian and Merkel’s contribution to the erosion of free speech in the West.
Germany however remains hellbent on leading the free world to give up this core freedom. It often claims the need to fight free speech because of its ugly history under Hitler. However, the first thing that the Nazis did was crackdown on free speech. Free speech is not the cause of but the defense against extremism. Denying freedom in the name of freedom is an Orwellian concept that is taking hold around the world. It gives an excuse for people, including many liberal organizations, to deny the free speech in others while claiming to fight intolerance. Obviously, the denial of free speech is the very embodiment of intolerance.