From Charlie to Christchurch: The Dangers of “Absolute Freedom of Expression” in Liberal Democracies
By: Edward Wong
Tags: Christchurch Shooting, Charlie Hebdo, Freedom Of Speech, Democracy, Politics

These were 28-year-old Australian citizen Brenton Tarrant’s haunting words published on his manifesto — “The Great Replacement”, shortly before he livestreamed his 17-minute terror attack on two mosques in Christchurch, New Zealand which resulted in the deaths of 51 Muslims. Tarrant’s attack was viewed for approximately 4000 times on Facebook before being removed and has catalysed rigorous debates on the limitations of freedom of expression (FOE) within liberal democracies. Tarrant’s manifesto constitutes a dark possibility of what a freely expressed ‘absolute’ and ‘unregulated’ right-winged ‘ecofascist’ extremist ideology entails whilst also highlighting the structural deficiencies of inadequate measures taken to address the exponential spread of ‘online hate speech’. For the purposes of this piece, I will define absolute FOE to entail the freedom to express any idea in any form to the public and have confined my analysis of its impact on Western liberal democracies.

Drawing on the gruesome parallels between the ‘Christchurch shootings’ and the 2015 attack on satirical magazine Charlie Hebdo; this piece will analyse the impact of classical and modern liberalism on the development of FOE within the Western liberal democracies and show how these developments have shaped their respective interpretations of FOE. These different interpretations on FOE by Western liberal democracies then feeds onto my hypothesis on how FOE cannot be absolute because it is inherently malleable and contingent on the dominant discourse from which it derives its meaning from. To support this theorem, I will draw on the inconsistent attitudes towards free speech between anti-Semitism and Islamophobia in western liberal democracies. My piece then explores the harmful effects of unregulated FOE online to democracy before concluding with how current limitations to FOE within online platforms can be extended upon by the judiciary, executive and legislative branches of power to promote a moral and secure society.

Flowers and tributes near the Al Noor Mosque days after the massacre. Photo/Getty Images

The role of ‘liberalism’ on the development of freedom of expression

The core of liberalism’s political doctrine seeks to protect and maximise an individual’s freedom through the emphasis of meritocracy, autonomy, and the protection of that individual’s rights to life, liberty and property from both the state and the private sector (Encyclopedia Britannica, 2019). Although only entrenched into European politics in the early 16th century, liberalism drew its genesis from the combined effects of the Renaissance’s heightened intellectual ferment, the rise of a newly emerging middle class due to the proliferation of mercantilist economic policies and the spread of Protestantism that challenged the absolutism of both European monarchies and Roman Catholicism (Encyclopedia Britannica, 2019). Following renewed interest in the ‘Magna Carta’ during the heat of the English civil war; the newly empowered English ‘middle class’ were then given a formal medium of expression in the ‘social contract’ theorems developed by English philosophers John Locke who argued against the government wielding absolute power and advocated for the rights of individuals to exercise their natural rights to freedom of thought, speech, and worship (Loewenstein, 2008).

Leviathan by Thomas Hobbes

Whilst Thomas Hobbes’s “Leviathan’s” definition of ‘social contract’ theory justifies the absolute rule of a sovereign so long as peace and security were guaranteed, Locke’s “Two Treatises of Government” differs by stating that such power must not be absolute. The developments in ‘social contract’ theory would pose as a major factor that advocated for increased “freedom of expression” within Western liberal democracies that manifested itself formally in the English Bill of Rights in 1689 which outlined basic civil rights that are still cited in legal proceedings within the United Kingdom and other Commonwealth realms. Article 9, regarding parliamentary freedom of speech is actively used in Australia (Roberts, 2011).

Liberalism would then expand from merely encompassing ‘social contract theory’ to also affirm rights that to write, speak, organise, associate freely without fear of reprisal. These rights would be embodied not only in the 1689 English Bill of Rights, but also within the ratified U.S. Constitution in 1788 and the French Declaration of the Rights of Man and of the Citizen which (The 1789 Declaration) would serve as the core documents built upon liberal principles to uphold the right to FOE within Western liberal democracies. Despite many Western liberal democracies being able to draw inspiration to legislate FOE from such declarations, their respective attitudes towards the protection of their national security, defamation laws, preservation of public order and defence of moral fibre determines their different judicial interpretations of FOE.

The different interpretations of freedom of expression within liberal democracies

Every state has the right to protect the doctrines and ideals essential to its well being and proscribe detrimental ideas that seek to undermine its national security and will limit FOE accordingly. In France, FOE is firmly embedded within the 1789 French Declaration and represents a complex matrix that complements many other fundamental freedoms enshrined within the jurisprudent provisions of the Conseil Constitutionnel (Constitutional Council) (Alicino, 2015). Under France’s current legal system, the ‘Charlie Hebdo’ cartoon drawing depictions of the Prophet Mohammed constitutes a work of ‘satire’ and would be protected under Articles 10 and 11 of the 1789 Declaration which refers to the protection of the freedom of opinion and expression. The French bloc de constitutionnalité or constitutional block is made up of the 1789 Declaration, the 1905 Act — which formally separates the Church and State -, the preamble to the1946 Constitution, and the 1958 Constitution. The constitutional block has affirmed that FOE only be limited in the name of preserving “public order” which it has defined as protecting public safety, public health, public peace and respect for human dignity. French judges rarely perceive offences against religious beliefs to constitute a violation order on the basis that it doesn’t contravene any of these 4 pillars (Alicino, 2015).

Furthermore, as religion receives no special legal protection in France, it may be openly discussed, disapproved or even ridiculed as there is no specific rule in France that regulates the protection of religious practice in the name of maintaining public order and protecting individual rights (Alicino, 2015). This is because in France, FOE is primarily linked with the principle of ‘Laicite’ which emphasizes the neutrality of state law when it comes to religion. Hence, there is no provision outlined in France’s criminal code for penalties for blasphemy or offences against religions unlike the provisions found in the Italian Code.

In stark juxtaposition to how ‘blasphemy’ is adjudicated in France, the International Humanist and Ethical Union’s Freedom of Thought reports in 2018 that there are 55 countries that subject blasphemy to a myriad of judicial penalties. Blasphemy is punishable by imprisonment in 39 countries and may even warrant the death penalty in 6 countries. In Greece, Article 198 of Section 7 of the Greek penal code paves the legal scope to punish “malicious blasphemy” against the Greek Orthodox Church and similar tolerated religions. Regardless of any individual’s expression of reasonable doubt about God’s existence, state prosecutions under Article 198 have occurred and will continue to do so (Sturges, 2015). A high-profile case where Article 198 was invoked involved the successful banning of the screening of Martin Scorsese’s 1988 movie, ‘The Last Temptation of Christ’ (Sturges, 2015). The contrasting approaches in FOE concerning ‘blasphemy’ isn’t the only avenue where Western liberal democracies differ in their respective interpretations of FOE. Differing views on online censorship provide ample legal battlegrounds between individuals who believe in absolute FOE and those who condone its limitation.

Following the ‘Christchurch Massacre’, significant steps have been taken to restrict FOE under the notion of combating the use of the internet for terrorist and violent extremist purposes evident through the European Commission’s EU Internet Forum and the Global Internet Forum to Counter Terrorism (GIFCT) (Metz et Satariano, 2019). Whilst 18 countries and many major tech corporations have expressed support for New Zealand Prime Minister Jacinda Ardern’s call to quell online extremism to usher in a “a free, open and secure internet” by signing on to the non-binding ‘Christchurch call’ (Christchurchcall.com, 2019); The United States’ Embassy & Consulate has refused to join the endorsement despite having signed on the ‘Zurich-London Recommendations on Preventing and Countering Violent Extremism and Terrorism Online’ alongside the other 28 members of the Global Counterterrorism Forum in 2017 (U.S. Embassy & Consulate in New Zealand, 2019). President Trump who has regularly denounced the media as “the enemy of the people” has his administration refuse to join the ‘Christchurch call’ under First Amendment concerns. The White House also told the Washington Post that “the best tool to defeat terrorist speech is productive speech” and that to sign the “Christchurch call” would be a direct contravention of the First Amendment (SHAFER, 2019).

Whilst France may not have laws that punish blasphemy, the aftermath of the Charlie Hebdo attacks has seen the country enact laws that criminalise anyone who speaks positively of a terrorist act or group even if their intention is not to incite violence or promote the group. The French Interior Ministry figures report that 20 percent of the 2300 cases of individuals who allegedly spoke positively about terrorism in 2016 were minors with 6 percent being between the ages of 10 and 14 (Mondal, 2018). On the contrary, in the USA, the freedom to publish due to the provisions outlined in the First Amendment has been the norm and was further entrenched in 1966 when Congress passed the Freedom of Information Act (Parmar, 2018).

However, unlike how the 9/11 terrorist attacks were widely broadcasted over American networks, the “Christchurch Massacre” was quickly censored in CNN and many other social media platforms despite the provisions that support the freedom to publish under the First Amendment. Facebook’s vice president of integrity announced that the social media platform would place more restrictions on the use of its live video service, with the possibility of first-time offenders being temporarily banned from the service for 30 days (Nytimes.com, 2019). Backed by $7.5 million in funding, Facebook also announced that it would partner with the University of Maryland, Cornell University and the University of California to develop new technologies to better detect and eliminate troublesome images from the internet (Nytimes.com, 2019). Despite Facebook’s good intentions to curb the spread of “online hate speech and violence”, the 9/11 attacks were arguably just as deliberate and calculated as the Christchurch assault. Nonetheless, this didn’t impede the press from refraining from broadcasting the events on television and online on the basis that it would encourage more acts of terrorism. Such inconsistencies in the application of FOE within the US draws upon Stanley Fish’s theories that FOE cannot exist as not all ‘reasonable trains of thoughts’ on its application are uniform and is contingent on the social structures of governments and corporations who currently define what version of free speech adheres to the logic of their preconceived idea of ‘liberalism’ (Fish, 1994). This theory then feeds on to my next point that explores how FOE is inherently malleable and therefore can never be absolute regardless of the intentions of libertarians.

Freedom of expression is inherently malleable and can never be absolute

In Western liberal democracies, free speech is exercised inconsistently with regards to anti-Semitism and Islamophobia. Mondal argues in his article that liberal free speech theory is unable to account for its actual operation within the confines of liberal social orders and therefore is always restrained to the whatever preconceived conception of “free speech” it is subject to which will inevitably serve to confine FOE (Mondal, 2018). This is exemplified when the UK Labour Party’s suspension of member of parliament, Naz Shah in 2016 for anti-Semitist remarks posted on her Facebook page during the height of the 2014 Gaza crisis. The UK Parliament Home Affairs Select Committee then went on to establish a separate enquiry to ascertain the degree of anti-Semitism rampant within British political parties (Mondal, 2018). However, the intolerability of Islamophobia contrasts highly the level of urgency warranted to addressing Anti-Semitism within the UK. No such expansion on the legal proscriptions against expressions of Islamophobic sentiment is currently afforded to remarks that would suggest ‘hate speech’ or ideological condemnation of associating Muslims with acts of terrorism (Mondal, 2018).

The Baroness Sayeeda Warsi’s suggestion that the hypocrisy evident within the normalisation of Islamophobia in contrast to the legal protection afforded to anti-Semitist remarks accentuates the notion that FOE is a malleable and fluid concept that falls privy to the dynamic clashing forces of the predominant hegemony and counter-hegemony who constantly seek to redefine FOE (Bhatia, 2017). Therefore, for FOE to be absolute, liberal speech theory must reflect this flexibility of not having its definition be confined to the predominant liberal speech tradition outlined by whatever current hegemonic ideology it is subject to. Hence, the multidimensional complexity of FOE in the hypocritical treatment of “Islamophobic” and “Anti-Semitist” remarks within the UK suggests that more debates on FOE within liberal social orders are needed to redefine a more liquid, and malleable understanding of FOE that cannot be absolute (Mondal, 2018).

With Charlie Hebdo, the fact that France doesn’t have any laws that prosecutes “blasphemy” but does have laws that criminalise minors for remarks that advocate terrorism suggests the ability of Western liberal democracies to redefine and change the scopes for FOE at their discretion (Houry, 2019). Another example that solidifies my hypothesis on the malleability of FOE lies within the changing attitudes of Swedish internet policy and regulation. The World Wide Web Foundation’s 2014 Web Index ranked Sweden’s internet 5 among 61 nations with respect to its significance in political, social and economic impact (Freiedersdorf, 2019). Home to some of the largest file-sharing platforms like “The Pirate Bay” and the first pro file-sharing political party — ‘Pirate Party’, Sweden is considered a leading country both in terms of its technological innovation and progressive policy-making concerning FOE online. According to the Swedish Association for Sexuality Education (RFSU), Swedish attitudes towards child pornography were extremely liberal at the time, so much to the extent that it was even legal to buy, sell, and possess child, animal, and violent pornography in Sweden in 1971. Sweden eventually recriminalized child pornography in 1980, and recently 23 women were convicted of possessing sexually explicit videos and photographs of children (Thelocal.se, 2019).

Despite the liberal approach adopted to FOE, even Sweden has recently imposed restrictions to FOE concerning issues of net neutrality, surveillance and piracy (Cbsnews.com, 2019).

The Internet Infrastructure Foundation has reported that TeliaSonra has systematically given a lower priority to online traffic exercised by BitTorrent file sharing protocols and was also highly criticised in 2012 for announcing a pricier high traffic mobile plan (Thelocal.se, 2019). This breach of net neutrality contravenes the ability of the internet to be utilised as a medium to allow FOE to flourish as it systematically discriminates between which websites should receive higher or lower online traffic. Despite potentially breaching Article 12 of the Universal Declaration on Human Rights as well as Article 8 and 13 of the European Convention on Human rights; the Swedish government’s grant of extensive surveillance power to the National Defence Radio Establishment (Försvarets Radio Anstalt — FRA) over online activities to combat ‘external threats’ to national security allows the FRA to effectively monitor all cross-border cable-based communication without a warrant (LeTourneau, 2019). In 2009, the Swedish Parliament was the first European liberal democracy to enact the intellectual property rights directive (IPRED) into its domestic legislation which compelled internet service providers (ISPs) to release the identity of alleged offenders of piracy (Thelocal.se, 2019).

Despite having veered close to the realm of allowing absolute FOE to flourish within Swedish society with regards to its liberal policy on pornography, file sharing and the openness of the internet; Sweden’s recent actions has shown that even its interpretation of FOE isn’t absolute and is open to be remoulded by the democratic principles championed by its citizens. As society’s values evolve so too does our definition of what constitutes FOE that doesn’t aggravate public order and stir unrest.

Absolute freedom of expression may cause more harm to democracy

Courtesy of NYMG pictures

Whilst FOE shares a symbiotic and complementary relationship with democracy, absolute FOE may unintentionally cause more harm to the successful implementation of a democratic society. Like the Christchurch attacks, the 2014 Gamergate scandal is another dark example of how online abuse inflicted by “keyboard warriors of the alternative right” can incorporate a misogynist campaign on female members of the gaming community. Gamergate was proliferated by online platforms; particularly 4chan, 8chan, Reddit and Twitter (Salter, 2017) and was catalysed in response to Eron Gjoni’s initial 9000-word rant about his ex-girlfriend Zoe Quinn who allegedly slept with prominent gaming journalist, Nathan Grayson of Kotaku to obtain better coverage for her game. It then escalated to a misogynistic campaign that argued for the respect of ethics within gaming journalism and deteriorated even further when gamers used the alleged scandal to attack women for exploiting their sexuality to “infiltrate and destroy gaming from within” (Salter, 2017). The suffix “-gate” gave into a proposition and further entertained the idea that the attack on Quinn unravelled a mass conspiracy comparable to the ‘Watergate scandal’ where “authoritarian leftists” like Quinn were seeking to indoctrinate young people to politicise video games as opposed to allowing gamers to freely enjoy the gameplay features games provide without being influenced by politics (Chiel, 2019).

Within this antagonistic atmosphere, Gjoni’s article was removed by moderators across multiple websites but was still allowed on 4chan (Salter, 2017). Soon the hashtag #Gamergate became a viral phenomenon on Twitter emboldened participants of Gamergate who then allowed themselves to delve deeper into delusion as they imagined themselves to be akin to “noble crusaders” who justified their focused harassment and abuse inflicted upon women under the banner of protecting “ethics in video game journalism” amongst multiple contradictory rationales. Such was the damage of the spread of exponential harm in the form of “hate speech” “trauma” and “psychological abuse” online that in September 2014, 4chan administrators took the unusual step of banning discussion of Gamergate despite their history of non-intervention on the site (Perrault et Vos, 2016). This then prompted gamers to migrate to 8chan, an imageboard site like 4chan where FOE is entirely unregulated to the extent that even enables the distribution of illegal child abuse materials which allowed participants of Gamergate to continue the abuse campaign (Salter, 2017).

The recent disinformation scandal and Russian interference during the 2016 Presidential elections is another example that proves how the exponential spread of unregulated FOE can warrant damaging consequences that undermine the credibility of Western liberal democracy’s institutions. The New York Times’ 3-part series documentary ‘Operation Infektion’ explores how Russia exploited Facebook’s search algorithms to systemically target vulnerable social groups within the US’s demographics with its disinformation campaign (NYTimes.com, 2019).

Creepily, Microsoft’s artificial intelligent Twitter chatbot Tay, became ‘viciously racist’ within only 24 hours (Chiel, 2019). Interestingly, the similar chatbot Microsoft released in China that had been talking to millions of people for a year did not experience the same issues (Chiel, 2019). Microsoft soon removed ‘Tay’ and has deleted its offensive tweets; however, this experiment has dangerous implications for FOE in the future. Who should be held accountable should artificial intelligent entities express themselves in a manner that is conducive to promoting hatred and disinformation?

Redefining limitations on the freedom of expression for online platforms

As he blasted a morbid perversion of ‘The Brigadiers’ theme, Brenton Tarrant shouted sarcastically, “Remember lads, subscribe to PewDiePie”, a reference to YouTube’s most subscribed channel (Roose, 2019). Hours before the attack, Tarrant freely uploaded his ‘right-winged’ themed manifesto to 8chan which was rich with irony, contradictions and references to online meme culture. Even Tarrant’s manifesto, which was riddled in “shitposting” was clearly designed to derail serious political conversations and elicit strong reactions from people who didn’t understand or weren’t familiar with online subculture as he acknowledges how video games taught him ethno-nationalism (Lorenz, 2019). Thought daunting and confusing to many, this strange reality is a product of FOE online and only shows how detached regulators of free speech are.

Building on top of Neo-Gramscian theories of international governance that argues for more consent to be built for institutions to be effective and enact social change, I propose that Western liberal democracies adopt a clear distinction as to what constitutes extremist content designed to destroy the fabric of a secure and stable society from satirical expression. More clarity and education are required to familiarise law makers with the evolving nature of communication and to better equip them to differentiate “jokes online” from harmful content. The recent US Federal inquiries onto Facebook following the Cambridge Analytica scandal just goes to show how outdated and ‘clueless’ legislators on online forms of expression are (Graham-McLay, 2019). Facebook’s founder Mark Zuckerberg recently called for the need for more regulation with respect to harmful content, election integrity, privacy, and data portability. Zuckerberg also called for a more standardized approach and suggested that third-party organizations could set standards on harmful content while Internet companies should be accountable for enforcing these standards. Facebook has also recently invested in research that studies techniques to detect manipulated media as part of its efforts against fake news (ASEAN-Australia Strategic Youth Partnership, 2019).

Government must ensure that measures to protect national security like Australia’s data encryption laws, the US’s Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism and the UK’s Counter-Extremism and Safeguarding Bill (Prevent Strategy) do not unjustly discriminate any ethnic minority (Parmar, 2018). The UK’s Prevent Strategy has encouraged universities to enforce an unhealthy culture of ‘self-censorship’ within politically active Muslim students by encouraging the monitoring and recording of online communications of students and staff (Parmar, 2018).

Conclusion

By utilising the role of liberalism’s evolution to explain the legislative rationales for different interpretations of Western liberal democracy’s limitation of free speech, I hypothesise how FOE is inherently fluid and subject to the confines of liberal free speech theory of the predominant ideological hegemon. FOE therefore can never be absolute regardless of the intentions of libertarians who believe in unregulated freedom of speech. By referring to the Gamergate scandal, the Russian disinformation campaign and the censorship of the Christchurch massacre video; I then suggest how FOE if left unregulated can cause more harm on democratic institutions before building on top of Neo-Gramscian theories to suggest alternatives to redefine the limitations on the FOE on online platforms to better contain the spread of “hate speech”.