A few weeks ago, at one of the nicely organized UK free speech initiatives I sometimes get invited to, I had a brief, but intriguing confrontation with some free speech absolutists.
Readers of Café Américain know that I am not a free speech absolutist myself. This is for the simple reason that I find the idea of free speech absolutism self-contradictory: for the idea of absolute freedom of speech must then also include the denial of free speech. In other words, it must include the free speech of censors, i.e. censorship. This then denies free speech for all: if everything is permitted, nothing is. Well, this is what you often get with absolutisms: they become self-contradictory. And self-contradiction is averse to logic, and therefore, as I have explained elsewhere, morally deficient.
But I should start at the beginning. At the meeting, a German journalist who writes for UK publications gave a short report about the state of free speech in Germany. She mentioned the firing of a TV moderator for holding up views that ape those of a designated Islamist terrorist organization, and said that the firing was an infringement of that person’s free speech. Yes, it probably was. But also, that person was parroting views of an organization that kills civilians for a living. The German constitution (Grundgesetz) carefully distinguishes between the right of the expression of one’s opinion, and public support for dangerous terrorist organizations. To me, then, the firing of the moderator is not a free speech issue. Or, in any case, I condone the firing of that person to prevent her from normalizing violence as a means of political discourse.
The German constitution (Grundgesetz) carefully distinguishes between the right of the expression of one’s opinion, and public support for dangerous terrorist organizations.
Notably, at no point in her talk did the journalist mention Jews being erased from public life in Germany. She did not mention the banning of Israeli academics from German universities and the banning of Israeli-German academic exchange, the disinvitation of the Munich Symphony Orchestra by the Ghent classical music festival, because its conductor is Israeli, the cancelled events involving Jewish speakers or Jewish themes. Or the restaurant owners in Berlin who are forced to close shop because of the avalanche of death and terror threats they have received since October 7, 2023. I was told she didn’t have time to get to it, but my suspicion is that these cancellations and disinvitations and the involuntary joblessness of Jewish restaurant owners did not merit the same attention, because no one wanted to offend the anti-Zionists in the room, as we had more important things to talk about than the current war in Israel.
(I, however, still mull over what exactly it is that made the TV moderator’s firing an infringement of free speech rights and the cancellation of Jewish speakers not so).
It was an open discussion, after all, so I reported my concerns to the approximately 40 people in the room. We have all heard that free speech can only be genuinely called free speech if it includes the free speech of someone’s opponents. And it seems quite often that this way of talking is precisely a weaponization, an implicit rejection of the “other side” that doesn’t want “to talk”.
I said that I liked the German constitution—I really do—for having clearly defined the limits to free speech. Because yes, there must be limits to free speech if the concept is to mean anything at all. As mentioned earlier, it cannot encompass “everything”. It cannot, for instance, encompass generic censorship, or it suspends itself.
One of the limits of free speech according to German law concerns the Holocaust and “Volksverhetzung” (incitement of popular hatred), i.e., § 130 of the Criminal Code, known as the “incitement paragraph”:
Section 130 – Incitement to Hatred
(1) Whoever, in a manner capable of disturbing the public peace,
- incites hatred against a national, racial, religious group or a group defined by their ethnic origins, or against parts of the population, or against an individual because of their membership in one of these groups or parts; or calls for violent or arbitrary measures against them; or
- attacks human dignity by insulting, maliciously disparaging, or defaming a group as above, or parts of the population, or an individual belonging to such;
shall be punished with imprisonment from three months up to five years.
Holocaust denial is also explicitly covered under § 130 of the Criminal Code, which makes it a crime to publicly or in an assembly approve, deny, or grossly trivialize genocide or other crimes committed under National Socialism, in a way that is capable of disturbing the public peace. That clause directly addresses Holocaust denial. This is further strengthened by § 130(4) and § 130(5), which extend the ban to Holocaust denial even if expressed abroad and later made accessible in Germany (for example, on the internet).
Of course I didn’t remember the exact phrasing of the law, but I said that I thought it was good that public Holocaust denial was prosecuted as a federal crime in Germany. I think it is good for the same reason that I think that the Soviet Red Army’s destruction of Hitler bunkers after the war to prevent them from becoming places of worship and pilgrimage was good. For both measures in fact prevented a resurgence of National Socialist ideology on a wider scale, both in the East and the West, for decades after the war.
And that was met with unease by some. You will soon see why.
I ramped it up by saying—remembering a good conversation with my managing editor from the previous night—that the “free marketplace of ideas” really isn’t all that free and democratic, and that the “good ideas” do not necessarily prevail over the “bad ones”. Exhibit A: Nick Fuentes. Exhibit B: Candace Owens. Exhibit C: Tucker Carlson and his “Winston Churchill was the real villain of World War 2 and the Nazis did not really have concentration camps” nonsense-spouting podcast guests—the three of which share between them 24.6 million followers and counting on X alone. It is not an impediment to their success that all three of them are crazy. To the contrary.
The “good ideas” do not necessarily prevail over the “bad ones”.
“It’s because no one takes Nick Fuentes on!” was one counterargument. I considered it. This seemed untrue (Douglas Murray has taken on similar influencers and was torn apart for it), but it also seemed naïve. It is not as though you can convince anyone who believes that Jews have horns of the “better argument”.
It is not as though you can convince anyone who believes that Jews have horns of the “better argument”.
Another participant in the discussion later proudly presented himself as a free speech absolutist, saying that he is against the banning of Holocaust denial, because he could “disprove Holocaust denial in two minutes”. That seemed almost cute in its naivety. He thought he could convince someone who thinks that “less than a million Jews or so” were “rounded up” as POWs and died because there was not enough food in the harsh winters of 1941-43 that, “oh not at all, there were gas chambers, actually”. I bet Darryl Cooper, who spouts this lie, and David Irving will immediately withdraw their podcasts, books, articles and X posts on hearing this compelling argument.
And this is what struck me most of all—the naivety of free speech absolutists. As though any insanity in the world can just be disproven by the “better argument”. This is such an oblivious thing to say in its ahistoricity. There is simply no historical evidence for it. Free speech absolutists in some ways resemble the lovely inhabitants of the kingdom of Equestria from the My Little Pony franchise. Big-eyed Pinkie Pie and Applejack and Twilight Sparkle with their beautiful manes in a fictitious land of pink castles where bad things happen, but nothing so bad it cannot be straightened out with a good and honest conversation.
Free speech absolutists do in some ways resemble the lovely inhabitants of the kingdom of Equestria from the My Little Pony franchise.
The one argument that had a chance to convince me of the need to “hear all sides” was that the German government currently uses the incitement paragraph to ban a political party, the AfD. The AfD has long been a thorn in the side of political establishment. I support large parts of its political program—especially where its political leaders call for the upholding of the Grundgesetz, as they did during Covid and against the Social and Christian Democrat governments’ illegal migration policies. But here is the crux of the matter: does the AfD actually incite hatred, as defined by the paragraph of the Constitution? Does it really “attack human dignity by insulting, maliciously disparaging, or defaming a group, or parts of the population, or an individual belonging to such”? I have not heard any of the politicians of that party do that. I intensely dislike and disagree with some of its leaders—Maximilian Krah and Tino Chrupalla, though for different reasons—but even they stay within the bounds of democratic discourse and incite neither violence nor intense hatred of a kind that would qualify them for arraignment on federal charges. Neither one ever said: “Blow up the Mosques”, for example. A court that would find the AfD guilty of inciting hatred according to § 130 would leave very much to be desired.
“Blow up the Mosques!”, in my opinion, should be considered an offense against democratic discourse, and social media rightly has its own terms of use to exclude such statements. That the lady who posted this on Facebook in the wake of the Southport Islamist terrorist murders of three little girls was jailed is obviously anti-democratic, when at the same time, the actual perpetrators of heinous crimes and violence against English girls run free. There need to be clear judicial lines of demarcation between violent words and violent deeds, that reflect the respective severity of the offense. For now, raping a little girl is registered at the same level—a jail sentence—with the abuse of speech, which in itself mirrors the totalitarian tendencies of the current UK government.
Not only this: the handling of social media posts directly inciting violence should include the persecution of antisemitic elimination fantasies, which however, to my knowledge never happens (last time I checked, Michael Rectenwald, for example, who wishes the “elimination of Zionists” was still running free, but ok, he’s an academic, not a carer who makes less than £20K quid a year). Millions of rabidly antisemitic X users who wish death upon Jews—who, in the face of the sheer quantity, will bring on the banning spree? That would be a huge bureaucratic and organizational effort for X, and we all know that Elon certainly doesn’t want bureaucracy. Nah, it’s much less work-intensive to have free speech for all. And a round of “Battle of Polytopia” (escapism, how fitting) after work.
But free speech out of laziness does not protect democracies. Where the rational argument loses, and the violent fantasy prevails, free speech simply doesn’t work. Nothing proved this as much as the killing of Charlie Kirk who was the most convincing public debater the US has seen in the recent past, and was still killed for speaking publicly. “More, not less free speech”, as free speech absolutists tend to argue, even exacerbates the problem of a downward spiral into a wholly brutalized society—where calls to violence, or the constant conjuring up of the violent behavior of one’s political opponent (“You kill babies”; “you commit genocide”), does make society more violent as a whole. In turn, concrete and actual violence begets more violent speech, which again breeds more concrete violence. This is of course the sad legacy of the Covid era’s erosion of sane and reasoned debate: the erosion of common sense.
When I speak of common sense, I mean generally binding standards upon which a democratic society can agree as a whole; standards such as those enshrined in §130 and that clearly exclude violence. As a society, we should return to normative standards—a normative basis—to what constitutes a democracy. For, after all, even those who call everyone they don’t agree with “Nazi” do so in the name of “democracy”, don’t they? So there must be a way that we could negotiate what democracy is supposed to mean (and by these standards, the claim “a man cannot be a woman” is simply common sense. Yes, some individuals will not be happy about this. But this is how democracy works).
Free speech absolutism is an untenable position in a democratic society, because it does not care much about the actual content of speech, and therefore betrays its “radically democratic” aspirations—it is a lazy free-for-all that includes its own negation.
Konstantin Kisin once said to me, in a similar free speech setting a few years ago, “No one is really a free speech absolutist”. He was right. For instance, none of the free speech absolutists I have encountered would allow hecklers disrupting public events to assert their “free speech rights”.
Simply writing this essay obligates me to stick to Chatham House rules, ordered by the Free Speech Absolutists themselves. I have nothing against Chatham House: I think it can be a useful thing. But don’t pretend you’re the most freedom-loving radical on earth and then say, “there are rules”. Just, simply, don’t pretend that you are the world’s freest radical democrat. Then, perhaps, your position will add up to reality.
