• Martin Schmalzried

The complex topic of violence and free speech

The Charlottesville protests, both Neo-Nazi and Antifa, sparked fresh debate about the limits of free speech and legitimate use of force/violence.

This debate can be best summed up by Karl Popper’s famous quote about the paradox of tolerance.

“Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. — In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant.” Karl Popper, 1945, The Open Society and Its Enemies Vol. 1.

Let us examine the different aspects covered in this quote, and those not covered.

First, it is easy to see what is missing: here, it is assumed that the established order is “tolerant” and therefore has the legitimate right to fight “intolerance” even by force. But what about States who are not tolerant? What about the legitimate use of force and violence against the State?

This is something that is seldom covered and discussed. In virtually all news articles, violence of protesters is always denounced, that of police forces is hardly ever questioned. Is there such a thing as “legitimate violence” from a group of protesters?

To answer this question, we must distinguish between two basic situations: that of a State with the rule of law, respect of Human Rights and Democracy, and that of a non-democratic State with no rule of law. In the first case, the Right to Revolution as it is called is embedded inside many Constitutions. Indeed, a Democratic State based on Human Rights has to cater for the possibility of a violation of its principles by a “coup” from those in power, abolishing democracy, human rights and the rule of law. Some modern States removed such a provision, persuaded that the “democratic culture” was so enshrined In the country that it was no longer useful. This is however quite problematic, since a similar argument could be given by an authoritarian government trying to do away with democracy by removing the safeguards provided in the Constitution one by one. So just like the separation of the executive, legislative and judiciary, meant to weaken governments and prevent abuse of power, the Right to Revolution is a right of “last resort” in case all other legal recourses fail.

Now in case of States without any democracy or rule of law, there is obviously no “legal” right to Revolution. In that case, violence is always legitimated either from the outside (other democratic States recognizing the Right of Revolution for an oppressed group of people against a dictatorial government) or à posteriori, once the revolutionaries have overthrown the government. We will not examine international law here since it’s application has always been quite selective and arbitrary, and depending on the willingness of the security council (for instance, in the Rwanda genocide, since the US was not very eager to intervene, it used “acts of genocide” instead of “genocide” when discussing it publicly, thereby avoiding to be bound by the obligation to intervene)

In the case of non-democratic countries, however, the Right to Revolution is problematic for several reasons: first, many such revolutions throughout history have been supported by other democratic States for reasons other than the spread of Democracy, Human Rights and the rule of law; those reasons often being economic and/or political domination (so called neo-colonialism). An easy example is the coup against Allende in Chile, supported by the US, bringing Pinochet to power (a textbook anti-democratic, anti-human rights and anti-rule of law government). Second, the Right to Revolution presupposes that any act of violent rebellion is justified in order either to maintain or to bring about democracy, human rights and the rule of law. But what about revolutions that bring about dictatorial governments to power? ISIS is a clear cut example. It can be argued that ISIS is a revolution against both anti-democratic puppet governments at the orders of the US (Afghanistan, Iraq after the US invasion) and against dictators (Syria). But is it any better? An especially problematic question is whether democracy can protect itself from an anti-democratic majority. It is not clear, for instance, if we allowed a democratic vote in many countries of the Middle East, whether the outcome would not bring anti-democratic religious fundamentalist parties to power. The Vietnam war is another example. Before the war, the Communist Party would have probably won in a democratic election. In other words, which “right” or principle trumps the other? The respect of democracy, human rights and the rule of law or the right of a people for self-determination at the expense of a more or less large minority (i.e all those in Vietnam who were against Communism or all those in the Middle East against a religious fundamentalist government)? There is no easy answer to these questions, but what is certain, is that the stability of a democracy takes time and practice. Even our modern democratic States have seen reactionary revolutions or coups that overturned democratic principles. One example is the coup of Napoleon III in 1851. In essence, it is difficult to envisage a stable democracy before the people of a country/nation are ready for it and usually ask for it themselves (this includes a wide array of principles, among which the respect of minorities). There are no examples in history, to my knowledge, of successful, forcefully imposed democratic revolutions from the outside. Democracy always relies on a strong internal desire from the people themselves, giving credit to the “rule by example” strategy whereby people ruled by a dictator living next to a democracy gradually recognize its merits and start wishing for a regime change. The Congress of Vienna following the Napoleonic wars in 1814 and 1815 acknowledged this tendency which is why the various autocratic rulers of European countries agreed to assist each other in crushing internal democratic revolutions to avoid the “spread” of such ideas.

Now to the issue of violence: can they bring about a democratic change? Most often than not, as some underline[1], when it comes to violence, the outcome is unlikely going to be democracy, but simply substituting one dictatorship by another. It seems, however, that this depends on historical context. For instance, the US revolution was clearly violent as it involved both formal military and informal guerrilla warfare against the troops of the British Empire. The French Revolution was also quite violent. More recently, the Japanese Meiji Restoration in the middle of the 19th century also brought about the seeds of a Western Parliamentary system with much blood and violence. The fact that in the 20th century, violent revolutions were non-democratic in nature could arguably be explained by the growing lack of desirability of democracy. Why this is so is anyone’s guess, but some elements of explanation can be: the neo-colonial attitude of democratic countries which effectively abused the terms “human rights” and “democracy” to legitimize their overthrow of governments only to replace them with “puppet” dictators, the rise of relatively successful authoritarian governments in bringing about economic development and prosperity (China for instance) thereby presenting an alternative to the necessity of democracy, and the gradual wearing down of democracy where elections are more and more manipulated (gerrymandering, manipulation of people’s opinions via the mass media…) and where democratic institutions are unable to contain the growing influence that a small elite (mostly the rich) have over politics and decision making (as a Princeton study has shown, a democracy abiding by the rule of law only so long as it serves the interests of the 1% can hardly be called a democracy[2]). This is very bad news for democracy as it no longer has the desirability status it had a century ago, and is just about to loose it’s status of “least worst of all systems” as Churchill would say.

One could object in saying that it is still better to live in the US than North Korea, which is self-evident. Still, one cannot fail to see that the obstacles faced by democracy listed above have diminished its desirability throughout the world. The election of Trump, in the US, has been used explicitly by the Chinese government to justify delaying any type of democratic reform, basically saying to the Chinese: “you see what happened in the US? Is that what you want?”[3]

So violence and the use of force are not necessarily bad, depending on the final outcome (strengthening human rights, the rule of law, democratic principles or not).

What about violence in “well-established” democracies? We have seen above that in many such countries, the use of violence is permitted in order to fight against an oppressive government (should democracy and rule of law be overthrown). But who is the judge of that? When democratic institutions start failing, there is no longer an authority which can “confirm” in an unbiased way, that an act of violence is “legitimate” and in line with the legal provision of the “Right of Revolutions” or “Right to Resist”.

I would recommend reading the paper from the University of Chicago Law School: “When to Overthrow your Government: the Right to Resist in the World’s Constitutions”.[4]

On the legal provision of the right to resist, the paper distinguishes between two functions, as we have seen above.

“On the one hand, the constitutional right to resist can represent a fundamentally democratic and forward-looking tool that constrains future government abuse, empowers the national citizenry, and acts as an insurance policy against undemocratic backsliding. On the other hand, the right can serve as a backward-looking justification for coupmakers who seek retroactive legitimacy for whatever political crimes placed them in a position to make a new constitution in the first place. Which of these two functions prevails may be in large part regionally determined. Latin American constitutionmakers primarily adopted the right to resist in the aftermath of coups d’état, while in other parts of the world the right to resist functions as a precommitment device against undemocratic backsliding.”

We also need to distinguish between different types of violent acts. Obviously, acts of sheer vandalism or gratuitous acts of violence do not qualify under the “right to resist”. On the other hand, violent acts with a specific political goal can. Among those, we can identify two major different types of violent acts: those which aim at realizing certain political objectives inside the established institutions and government and those which aim at overthrowing the government violating democratic principles in order to bring back democracy. The first ones aren’t really covered by the “right to resist”, but rather under other types of principles like “civil disobedience”.

Let us examine two or three examples of people using violence or force inside democratic countries and untangle how “civil disobedience” can be used to defend their acts or not.

French farmers have been known for their violent protests, forcefully blocking streets/roads, spilling tons of fruit, vegetables, manure or even the carcasses of dead animals in the street or in front of the premises of key political institutions, burning tires, degradation of public/private property, spilling milk in the streets…[5] Yet their use of force has been met, at the political level, with statements expressing “understanding” and “support” but with little concrete political action. In other words, they tacitly acknowledge the legitimacy of their violent acts given their difficult financial situation (some farmers can barely make ends meet), yet drowning the prospects of permanently addressing their concerns by referring to the “complexity” of the situation and so forth[6]. Comparatively speaking, other forms of violent protest has landed the perpetrators in prison. Such was the case for the ex-employees of Goodyear who were sentenced to prison for their violent acts during protests[7]. Thus we see that depending on who the perpetrators of violence are, and what they ask of the government, their treatment and whether their use of violence is legitimated/accepted by the government, greatly varies.

Arguably, some of the reasons in favour of farmers is the fact that farmers are self-employed, have access to resources (tractors) which can work to their advantage in terms of balance of power making them harder to contain, and are seen as representing some form of national autonomy in food production and thus deserve a more lenient treatment. Whereas other groups like workers carry a different symbolic importance. A rebellion of workers, in a globalized world with free movement of capital, is a direct threat to a countries’ economic prosperity, scaring away potential foreign investment and entrepreneurs. Who would want to invest in a country where workers can, at any time, go on strike, rebel (sometimes even violently) and force the government to enact more progressive labour laws, nibbling on shareholders’ and investors’ profits?

So although both acts of violence are in breach of the law and are grounded on similar political claims (economic/social justice), in one case the political demands are somewhat recognized and met and the perpetrators of violence are let off the hock, in the other case, the political claims are fully rejected and the perpetrators of violence are judged and condemned.

Do such double standards suffice to posit the absence of the rule of law? Do they justify to move from a “civil disobedience” rationale to a “right to resist”? Here, I would argue that it is the repetition of such double standards which can, in the end, tip the scale in favour of a citizen driven revolution.

Now lets examine cases of violence from individuals on the basis of either personal prejudice or prejudice against a group.

I invite you to look up “Killdozer”. You’re in for a story that defies reality. Marvin Heemeyer was a regular automobile muffler repair shop owner. He set up his business in an abandoned and worthless piece of land he bought from a federal agency. As business started to flourish in the area again, the land started to increase in value. Marvin agreed to sell a part of the land for a concrete batch plant, but later changed his mind, increasing the price of the sale. He proceeded to oppose the construction of the plant to no avail. Furthermore, part of the land on which the concrete batch plant was to be built used to allow his customers to get access to his shop. The concrete batch plant owners refused to let him have access to the road. After resorting to all possible legal options, Marvin even bought a bulldozer in an attempt to build an alternative road allowing customers to have access to his shop, which the city officials rejected.

In the end, he customized the bulldozer building a shell of concrete and metal transforming it into a tank, and went on a rampage, destroying various properties of the institutions and individuals which caused him prejudice: the concrete batch plant, the house of the judge who rejected his pleas, the city council… After the bulldozer got stuck, he committed suicide inside the customized bulldozer, named the “Killdozer”.

Another story of violence is that of Micah Johnson, the Afro-american sniper who killed 5 police officers in Dallas. According to the negotiators who spoke with him, he was upset about the killing of black people by white police officers and wanted to kill them[8].

Again, here, violence in both of these cases isn’t justified since there was no full-scale breakdown of the rule of law. White police officers don’t always shoot black people, and city councils don’t always collude with private interests to cause prejudice to an independent shop owner. Still, the reading we have of these acts should change. In both of these cases, the individuals were ready to die for the injustices they felt, either personally or against fellow individuals of a group which they identified with (other black people). Public authorities are quick to dismiss these cases as isolated, mentally ill people, but should it be that easy?

Here, I will expose my deeper thoughts on how to interpret and deal with violence with a political aim, especially suicidal violence.

The Constitutions of all Democracies should be updated to set up a special independent authority, within the judiciary, which has broad investigative powers and judicial powers to denounce responsibility of any and all individuals, even Members of Parliament or the head of the government, following the investigation of a suicidal act of violence with a political aim, and regular suicides as well. Their conclusions should be followed by a mandatory debate within democratic institutions to either address or ignore the conclusions set out by this special authority. In case the follow up by democratic institutions does not satisfy the special authority, it can call upon a referendum in the population to call early elections. Why should we set up such an authority? Isn’t it a blatant support of violence?

First, we must agree on the following premise: each human being has a strong natural sense of self-preservation and the will to live. In order for humans to commit suicide or to carry out a suicidal act of violence, they must hold an extremely strong sense of prejudice and desperation (that any legal or non-violent recourse would make no difference), thereby imposing, with violence, their own perception of justice. Of course, there will always be in a human society, a number of mentally-deranged or dysfunctional individuals who will commit suicide or acts of suicidal violence, which is why it is essential to have a dedicated authority to identify patterns within suicides and acts of suicidal violence and assess whether they were unavoidable and due to misfortune, or whether government policy could have made a difference.

Second, we must agree the purpose for which democratic governments exist. According to political theory, in a democratic political system, power is vested in the people. The government is mandated by the people to represent their interest, commonly referred to as the “general interest” or the “common good”. In many constitutions, it is also explicitly written that governments should allow for the pursuit of happiness. An increase in the number of suicides or suicidal acts of violence can be the most indicative variable of an unhappy society, pointing to some form of government failure. In Greece, for instance, austerity measures and the dire economic and social situation are at the root cause of the massive increase in suicides[9].

Many democratic States openly boast about how much better they are then dictatorships in ensuring the happiness of their citizens, including protecting them from arbitrary violence that can even go so far as death. Every time anyone criticizes democracy, we hear examples of Stalinist purges or North Korean prison camps. Yet when examining the case of Greece, what is the difference? If (private) economic interests are defended to the point where they cause people to commit suicide, can we still claim that democracies have the higher moral ground? The only difference, it seems, is in terms of direct and indirect forms of violence with a similar end result: people are unhappy and die.

Limits to free speech

The absolute protection of free speech seems like a commonly accepted principle, both in jurisprudence and in the intense lobbying of most non-governmental organisations, arguing, legitimately, that exceptions to this principle can cause a dangerous precedent and a slippery slope into government censorship thereby undermining one of the core principles of democracy: the ability for anyone to express and defend his/her political ideas in public, thereby informing the public debate and exchange.

However, this confronts us with difficult questions when considering historic cases like the rise of Hitler to power, which brings us back to Popper’s quote: tolerating intolerance results in the ultimate destruction of tolerance. The tricky question is when should a democratic government step in to prevent the take-over of “intolerance”? Looking at Hitler’s rise to power, when should the government have intervened? After the publication of Mein Kampf? After he reintegrated the National Socialist party and resumed incendiary public speaking? After he arrested 81 communist members of parliament? After he got the parliament to vote on the Enabling Act which granted him de facto dictatorship powers?

It’s a hard question to answer. The problem is that you would have to set up an authority which had the power to step in whenever democracy was abolished or violated in some way or another, which means it would have to have powers to face a failing democracy in which some of it’s most powerful institutions such as the police and/or army are controlled by a dictator. I have a hard time imagining what such an authority would look like. It’s only very rarely the case that the army or military help in securing/maintaining democracy (like arguably in Lebanon and Turkey). Most of the time, the military stepping in meant the end of democracy.

The easy way to approach this is through the respect of the due process of the law. If something is illegal, like sending a threat to murder someone or putting online child abuse material, then it is legitimate for governments to step in and take action. In the online world, however, this can be problematic.

First, most online content is hosted by giant private hosting companies like Amazon Cloud or Cloudflare and “freedom of speech” only applies to public authorities, not to private actors. Private actors have the power to censor whatever they please, in accordance with their terms of service, and are only bound by some basic legal principles like “unfair contract terms” or “consumer protection” law. That is not to say, of course, that private actors arbitrarily make use of their powers to censor the Internet. Many private actors, on the contrary, have been vocally supportive of (political) freedom of speech and fought against governments requiring censorship of content that went beyond the application of officially enacted law inside a functioning democracy with the rule of law. At the moment, content on the Internet is censored around two or three main themes: copyrighted material, child pornography and terrorism. These three are taken down either pre-emptively (via the use of image/text/sound/video recognition software) or as soon as it is reported. But there are examples where freedom of speech has been violated by the private sector, for instance in the case of Wikileaks, which was shut down by Amazon before any formal legal proceedings or court ruling was passed[10]. In a similar case, the very recent censorship of the Alt-right/neo-nazi website the “Daily Stormer” by Cloudflare, raised questions about freedom of speech, as the CEO of Cloudflare admitted that the respect of freedom of speech by the private sector is only based on their willingness to do so. The CEO also recognized that this new censorship power in the hands of the private sector might be problematic for a healthy democratic society online, where the “virtual public square” is owned by major private companies like Facebook, Youtube, Amazon or Cloudflare[11].

Second, even if due process is respected, the implications of investigating online can be damaging. In the real world, breaking down the door of a child molester does not make other doors more or less vulnerable. But breaking into someone else’s computer or hacking someone’s account may make everyone on the internet less safe. The CIA and FBI have developed a wide array of para-legal tools to break into someone else’s computer, but these vulnerabilities, if discovered by ill-intentioned people, can cause a lot of damage and detriment to regular users. The FBI, for instance, ran a hacked server hosting child pornography in order to collect information about the website’s visitors. In that respect, it succeeded, but in the process, has arguably violated the law[12].

But what if the FBI had full legal clearance, would it make the string operation legitimate, proportional or acceptable? Governments have a tendency to abuse the powers they have and so a powerful investigative tool which can easily breach any online security and privacy can be suddenly used for other motives besides the well accepted aim of catching child molesters. History is full of examples where political dissidents have been brought to justice in such a way: Hitler framing the Communist party for the Reichstag fire, the US framing, via informants working for the government, Communist party leaders, accused of conspiracy to violently overthrow the government. More recently, in France, the “état d’urgence” (state of emergency) declared following the terrorist attacks in France, was never lifted and was used to place environmental militants under house arrest during the COP21 meeting in Paris[13].

Looking at government powers granted during “good” times is never a reliable indicator. Rather, we should try to imagine what a government would do, vested with these broad surveillance/investigative powers, in times of crisis. The current “terrorist threat” is an interesting case. Many countries have widely broadened their security and surveillance arsenal without any tangible or proven results in preventing/deterring a terrorist attack. George W. Bush’s Patriot Act was arguably at the origin of Snowden’s revelations about the NSA and other intelligence agencies and how they can spy on any US citizen with hardly any limit[14].

All this brings us back to the initial conundrum of “tolerating intolerance”. Should there be a limit to “free speech”? The easy answer is “yes, at the individual level”. Hate speech or child abuse for instance, targeted against an individual or individuals, should be combated. However, at the political level, Free speech should be absolute. Why so, you may ask? Wouldn’t it allow the likes of Hitler to ascend to power?

Leaving political Freedom of Speech absolute while cracking down on hate speech or child abuse online may prove difficult, as we have underlined above. Any online investigation by public authorities will have to be done under the explicit mandate of a judge and in accordance with the law. The cooperation of the private sector in such investigations is key to prevent public authorities to have to breach security by exploiting vulnerabilities in software/hardware.

In writing about tolerance and intolerance, Popper failed to examine the following: there is no smoke without fire. Extremist political views do not emerge out of thin air, with no underlying reason. Is it any surprise that the “alt right” or "neo nazis" in the US (re)emerge as inequalities in the US have reached all time highs? As the US humiliates itself more and more with it’s disastrous wars in the Middle East with no end in sight and seemingly only making things worse (the emergence of ISIS)? As, following the 2008 crisis, regular citizens are squeezed to pay for the mistakes of arrogant and greedy bankers? Sure, you may say that the “alt right” has chosen the same ill-founded simplistic reasons for their grievances as the German Nazis have, blaming it all on Jews. This time around, it’s the Mexicans, Muslims and perhaps even Black Americans. Make no mistake, while humans may be more sophisticated than animals, they will not fail to react to situations of perceived injustice or inequality, sometimes in irrational or violent ways. Violent reactions to injustice or inequality seem to be coded deep within animal’s DNA (including our own).

Aristotle wrote it clearly a few Millennia ago: in the general causes of revolutions, we find, unsurprisingly, poverty or rather, the growing inequalities between a very few rich individuals at the top and a mass of poor people at the bottom. But it is not just about poverty, it is also about feelings of exclusion and humiliation. So very often, those who rebel seek to regain some property but also, to regain a sense of honor and self-worth. Also part of the general causes, Aristotle found that “[a] revolutionary climate would be soon created, especially when the state officials become haughty, arrogant and drunk with power, or pay no attention to the genuine problems of the people.”[15]

Extremist political speech is only the first symptom of these larger problems at work in our societies. So it’s not about fighting the “intolerant”, it’s about finding why they turned intolerant in the first place, otherwise it’s just another game of whack-a-mole where you imprison or kill one humiliated poor or disenfranchised after another.

So to sum up: leave any and all political Freedom of Speech, and treat the emergence of extremist speech as a good indicator as to how good of a job your government is doing in working for the general interest/common good. If violence breaks out, allow an independent authority to investigate the motives and if it falls under the category of suicide or suicidal acts of violence, try to learn from these very sad and dramatic events to improve, as a society, and for government to take responsibility for their failure to secure an environment which allows the pursuit of happiness and revise their policies accordingly. After all, the end of slavery, the end of child labour, better working conditions for workers, the right to vote for women or the end of racial segregation all had their pacific manifestations but also their violent ones. Finally, if violence results in the overthrow of government, unfortunately, it is only à posteriori that one can judge whether it will serve the greater good or not. But a government which faces such repeated violence might not have the legitimacy to defend itself anyway. Recognizing the legitimacy of revolutions and revolts is and will always be difficult, but people seldom revolt and sustain such a revolt without reason. When people start believing that their common good will be best served by subverting the government, it must point to some severe failures of the government itself.
















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