Should there be even more curbs on free speech?

Reader Gingerbaker called my attention to a Substack post by Elder of Ziyon (henceforth “EoZ”), who also has an extensive and useful pro-Israel website I’ve cited several times. The post, which you can access by clicking the screenshot below, advocates for restrictions on the kind of freedom of speech presently allowed by America’s First Amendment.  The Elder’s view that the courts’ construal of our First Amendment needs to be modified is in fact shared by many, though the restrictions demanded are varied. All, however, try to restrict varieties of “hate speech.”

There are already well-known exceptions to freedom of speech as outlined in the First Amendment.  These, adjudicated by courts over the years, include speech that is defamatory, constitutes harassment, poses the thread of imminent and predictable violence, “fighting words,” false advertising, and so on (Wikipedia has a list of more exceptions).

The EoZ uses as his example the fundamentalist Islamist group Hizb ut-Tahir, which is active in Western countries. Several of them have banned it for its Islamist views, but it’s banned even more widely. As Wikipedia notes,

Hizb ut-Tahrir has been banned in Bangladesh, China, Russia, Pakistan,India, Germany, Turkey, the United Kingdom, Kazakhstan and “across Central Asia”, Indonesia, and all Arab countries except Lebanon, Yemen and the UAE. In July 2017, the Indonesian government revoked Hizb ut-Tahrir’s legal status, citing incompatibility with government regulations on extremism and national ideology.

Why the banning in paces like America?  EoZ explains:

The justification for these bans usually begins with the group’s stated aims. Hizb ut-Tahrir rejects liberal democracy and advocates replacing it with a global Islamic caliphate governed by sharia law. It presents Islam not merely as a religion but as a political system destined to supersede Western civilization. Its rhetoric is frequently antisemitic, dismissive of pluralism, and grounded in a vision of Muslim supremacy.

It is no stretch to say that the group’s ideas are hostile to Jews, to women, to dissenters, and to the moral assumptions that underlie liberal societies. If Hizb ut-Tahrir ever held power, its worldview would translate into repression.

There is a problem, though. Hizb ut-Tahrir is explicitly non-violent. It does not carry out attacks. It does not issue operational instructions for terrorism in Western countries. Its leaders insist, consistently and publicly, that their method is ideological persuasion rather than armed struggle. Their ideas are corrosive, but they remain ideas.

It appears to have used socialist concepts to build itself this way specifically to take advantage of Western freedoms and inoculate it from being banned legally in the West.

This brings up the question of where free speech ends and where limiting speech is better.

The EoZ gives this photo in his article, widely published without attribution, but it’s not clear that the people pictured are from Hizb ut-Tahi. Still, the issue under discussion is instantiated by that poster.

The EoZ notes that banning peaceful organizations for what they believe is not only a very slippery slope, but one that’s been descended many times.  And, for example, calling for the destruction of America or replacement of democracy with ideologies like Communism still counts as free speech in America. So why ban this particular group?  According to EoZ, it’s because the “violence” that may be produced by such organizations is delayed,  so that minds can be changed by gradually contemplating a group’s message, eventually leading—in the case of Hizb ut-Tahir—to the replacement of democracy with Islamist autocracy.

At the same time, pretending that Hizb ut-Tahrir is merely another set of opinions that should be ignored is willfully naive. Its ideology does not sit in a vacuum. It is a sustained narrative that delegitimizes Western society, portrays Jews and non-Muslims as exploiters, and presents the destruction of the existing order as morally necessary. It may not tell followers to commit violence, but it devotes considerable energy to explaining why violence committed by others is understandable, justified, or admirable. Over time, that difference becomes less sharp than Western legal categories would like it to be.

The problem, as I see it, is that the West’s concept of free speech is unnecessarily expansive and out definition of incitement is needlessly and extraordinarily narrow. We tend to locate responsibility almost entirely at the moment of explicit instruction, as though speech and action are cleanly separable until a specific verbal threshold is crossed. That approach forces societies to wait until violence is imminent before acting, while treating years of ideological conditioning as irrelevant. It assumes that moral preparation is harmless so long as it avoids certain words.

Hizb ut-Tahrir operates comfortably within that space.

But this case can also be made for many organizations, including the Communist Party and the many Islamist groups of young people who adhere to Islamism and want to see the end of “Turtle Island”.  Groups like antifa and sundry anarchists feel likewise.  Should they be banned, too? But the EoZ somehow sees Hizb ut-Tahrir as an exception, probably because it’s a threat to Jews, and the EoZ is ardently pro-Jewish (he mention that threat several times.)

 . . . . the problem posed by Hizb ut-Tahrir is not that it holds extreme beliefs, but that it functions as a preparatory environment. It habituates listeners to a worldview in which violence by others becomes morally intelligible. That places it in a different category from ordinary dissent or even radical critique, and it justifies a different kind of response.

This does not require banning ideas. It requires acknowledging that speech operates within systems. A society can restrict organizational activity, funding, coordination, and amplification when those structures predictably serve as pathways toward violence, without criminalizing theology or private belief. That approach is narrower, more defensible, and far less likely to metastasize than ideological prohibition.

Free speech in the West has gradually ceased to be treated as an instrument and has come to resemble an article of faith. . .

. . . The question, then, is not whether Hizb ut-Tahrir should be banned. It is whether Western societies are capable of developing a more mature understanding of incitement, one that accounts for moral enablement and foreseeable harm without granting the state a license to police belief.

I find this unconvincing, and I see no distinction between Hizb ut-Tahrir and the many other groups that want to replace democracy (in this case American democracy) with various forms of autocracy or theocracy, including groups that cry, “Globalize the intifada”—an explicit call for Islamic theocracy and violence. But note that this group doesn’t even call for violence, so how is it possible to blame future violence on its pronouncements?

The reasons I’m unconvinced are several, and not new.  First, it’s probably impossible to determine when a group’s beliefs or utterances promote eventual violence rather than imminent or predictable violence.  There’s a difference between a lone moron on the Quad crying “Gas the Jews”, and a person saying the same thing in front of a synagogue or group of Jewish people (who in America aren’t violent anyway). If someone eventually torches a synagogue, even citing certain groups in a written manifesto for the actions, those groups cannot be retrospectively indicted for violating the First Amendment, as we cannot be sure how much they contributed to the violence. “Imminent” is far easier to prove than “much later”. After all, many people who commit acts of violence are deranged, and have a mixture of motives that may be mixed up with mental illness. Thus, although P. Z. Myers, contemplating Joe Lonsdale, has said “maybe it’s time to hang a few billionaires to teach a lesson to those greedy parasites“, I don’t think Myers should be arrested even if someone who reads his site hangs or kills a billionaire after citing Myers’ posts.

Just think of all the manifestos written by violent criminals who have cited a variety of influences! We can’t simply go back and arrest them all because they contributed to violence, for contributions are fuzzy, unpredictable, and often mixed up with mental illness or a propensity to be violent per se.

Second, the remedy for “hate speech” like the nonviolent calls for Islamism by Hizb ut-Tahrir is, as we all know, counterspeech. And that involves pointing out how Islamism is a repressive, theocratic form of government that is inimical to the well being of its believers—and of any country that adopts Islamic tenets. Women and gays are oppressed, people of other faiths (or of no faith) are endangered, and free speech itself is usually outlawed or greatly restricted.  That alone guarantees the failure of Islamism to replace American democracy, but in fact there is no way, given our Constitution, that a democracy would vote itself out of power in favor of Islamism or any government that violates the Constitution. (I’m not speaking of Trump’s probable violations of the Constitution to buttress his own power, as they will eventually be sorted out by the courts.) Even despite Trump, America remains a democracy, though a currently dysfunctional one.

Third, as John Stuart Mill pointed out in On Liberty, allowing people to say odious things has a number of beneficial effects, including “outing” those people who believe such stuff and would otherwise remain underground. Such odious views also help us us to sharpen our arguments against them, and their utterance also gives us the chance to correct the misapprehensions of their opponents (see this blog post on “Mills’s trident”).

Now I understand where EoZ is coming from. The Elder is certainly Jewish and is appalled by hearing things like “globalize the intifada”. Jews are being attacked throughout the world, and the EoZ holds antisemitic speech responsible. Indeed, many countries, like Germany and Canada do ban antisemitic speech or “hate speech” that demonizes identifiable groups.

Why shouldn’t we follow them? In my view, the reasons for banning “hate speech” are weaker than for allowing it, so long as that speech doesn’t lead to imminent and predictable violence or violates other restrictions the courts have put on the First Amendment. People can differ on this, just as I differ with the good Elder of Zion. But Mill laid out the reasons against speech bans in 1859, and in my view his reasons are still good.