Freedom of Speech in an Age of Radicalism

• Author: Amos N. Guiora and Stacey M. Wright
• Pages: 315-344

315

6

Freedom of Speech in

an Age of Radicalism

Amos N. Guiora and Stacey M. Wright

Introduction

Previous chapters have focused on distinct aspects of speech,

whether written, spoken, or illustrative. There is a great ten-

sion in the speech discussion because of the inevitable query

regarding the “limits” of free speech. Traditionally, there used

to be a great difference between the American and European

situations. As the late Ronald Dworkin writes,

In Britain and several other European nations . . .

people have a legal right not to be publicly insulted

because of their race; that right is protected by laws

making “hate speech” a crime. In the United States, on

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Populist and Islamist Challenges for International Law

316

the contrary, people have a constitutional right pub-

licly to insult anyone they like, by denigrating that per-

son’s race or any other group to which he belongs, so

long as they do not provoke a riot or incite others to

criminal acts.1

But that difference in approach between Europe and the

United States has become less prominent in the past decade.

After all, to suggest that speech be unlimited is neither toler-

ated by the courts nor intended by legislators. There is, also,

an understanding among the public that limiting speech is nec-

essary when it transitions to incitement to violence (think of

Ayatollah Khomeini’s death verdict on British author Rushdie

discussed in the previous chapters). The difficulty, and chal-

lenge, is delineating the limit; that is, when, and where, does

the freedom of speech end, particularly in the age of social

media?2 Meaning, when does speech become dangerous; more

specifically, when does incitement begin?

We live in a time where clicks and shares spread hate and

false information instantaneously across the Internet. The chal-

lenge is to determine what degree of extremist Internet speech

can be tolerated—in the context of freedom of speech—before

determining that extremist speech poses a clear and present

danger of inciting imminent lawless action. Balancing is essen-

tial; the consequences of unjustified limitations of free speech

are antithetical to a democracy. This begs the question: When

does limiting speech on one side effectively limit speech on the

other, to such an extent that there no longer exists a discourse

of ideas between parties? For instance, while we focus on the

1. Dworkin, Ronald, Is De mocracy Possible Here? Pr inciples for a New Politi -

cal Debate, Princeton Un iversity Press , Princeton an d Oxford 2006 , p. 33. Matal

v. Tam, 137 S. Ct. 1744 (2017) (upholding freedom to expres s the “thought that we

hate”). See Chapter 3, t able on free speech and hate spe ech laws.

2. For the E uropean Court of Hu man Rights’ ta ke on hate speech, see d iscussion

of the Sabaditsc h-Wolff case in C hapter 5.

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