The US Capitol Riot of January 2021: Why Freedom of Speech is Not Absolute

J to me: So you’re from Singapore?

Me to J: Yeah, I am.

J: (in deep thought, presumably wondering to himself how to raise a sensitive topic without crossing the lines of political correctness in offending the exotic new arrival from Asia). Why are your laws so tough there? It’s a police state from what I heard.

Me: I think the foreign media has exaggerated some aspects of Singapore’s approach to law enforcement. Yes, the laws are tough in Singapore … but there is a rationale for it – it deters criminal activity and disruption to society.

J: How so?

Me: As an example, there is censorship, for which Singapore has been heavily criticised by foreign journalists. But consider why we have censorship in the first place – back in the 1950s and 1960s, we had dreadful communal riots between the different ethnic communities, because irresponsible community leaders went about abusing freedom of speech and fake claims about different ethnic and religious communities to incite communal violence.

J: You’re wrong there. Riots are what take place in response to censorship. If you tried to impose censorship in the US, you would have a riot the next day.

Me: Did you listen to what I just said? Freedom of speech was abused by irresponsible demagogues, which resulted in riots that got people killed. Freedom of speech comes with responsibilities. If I went into a cinema and shouted fire, causing a stampede that kills a dozen people, no judge is going to take my invocation of freedom of speech as a defense seriously.

J: But those are two totally different issues!

ET: How so?

J: It is absolutely unthinkable that anyone seeking public office will ever engage in such irresponsible demagoguery!

This anecdote encapsulates much of the debate over what constitutes acceptable boundaries in defining freedom of speech. On the one hand, there was the idealistic American trying to be polite and politically correct in propagating the self-evident virtues of the First Amendment as universally sacrosanct, beyond reproach and without qualification. On the other side of the conversation, a national from another part of the world attempted to point out that unqualified and uncontrolled freedom of speech risks opening a Pandora’s box of social ills – only to have this rebuttal being heard on a superficial level, but not actually being listened to in explaining how and why freedom of speech is not absolute, nor should it be seen as such.

To this end, I find that the notion of freedom of speech as being unconditionally sacrosanct to be flawed. Even before the US Capitol Hill riot of January 2021, numerous instances illustrate how irresponsible or corrupt leaders can abuse freedom of speech to serve their own ends. Naïve adherence to freedom of speech to permit irresponsible rhetorical demagoguery can prove dangerous, even fatal, to freedom of speech itself. This much was evident during the rise of Adolf Hitler’s National Socialist German Workers Party - the National Sozialistische Deutsche Arbeiter Partei (NSDAP) - better known as the Nazi Party. Although momentarily discredited following the Bavarian Beer Hall Putsch of 1923, Hitler and his associates continued to plan for a new opportunity to seize power, which came in the aftermath of the Wall Street Crash of 1929 and mounting unemployment in Weimar Germany. Combined with post-1919 embitterment following the Treaty of Versailles that saw Germany’s humiliation, the result was a toxic cocktail of nationalist resentment, militant ambition to restore Germany’s greatness, and desire for scapegoats for the country’s ills. Hitler’s rhetorical skills necessitate acknowledgement, inasmuch as he was able to exploit the aforementioned dissent in 1930s Germany through rhetorical demagoguery and rabble-rousing that blamed ‘Communists and Jewish backstabbers’ for the country’s social ills, tactics that enabled the NSDAP to emerge as the largest party in the Reichstag in the Federal elections of July 1932. This granted Hitler an increasing level of political leverage in German politics. In January 1933, recognising the growing power and sway held by the NSDAP, Reich President Paul von Hindenburg permitted the formation of a coalition of government, with Hitler taking the post of Chancellor, apparently in the belief that Hitler’s extreme outbursts could be better managed once granted a position of leadership. This was not the case. Within weeks of Hitler’s appointment as Chancellor, an act of arson took place in the German Reichstag, an action that may have been orchestrated by the Nazis to further consolidate their grip on power. Blaming the Reichstag Fire on Communists, Hitler drafted the Enabling Act (Ermächtigungsgesetz) to grant the NSDAP a monopoly of power to rule by direct decrees from Hitler – powers which included the overriding of freedom of speech that had been hitherto protected by the German Constitution. In conjunction with the growing ranks within the NSDAP’s paramilitary arms – the Sturmabteilung (SA) and the Schutzstaffel (SS) - the NSDAP was able to intimidate the remaining opposition parties into agreeing to the Enabling Act by assembling SA and SS mobs on the streets of Berlin to threaten ‘Fire and Murder’ if the Act was not passed.[1] In the absence of freedom of speech to counter the NSDAP’s growing power, the years that followed saw further erosions of political and civil liberties, and the passing of the Nuremberg Law, culminating in the Nazi Holocaust. Threatening ‘fire and murder’ to intimidate a democratic political process is not a legitimate application of freedom of speech.

Such a backdrop throws the events of the US Capitol Hill riot into sharp relief. As early as Trump’s 2016 Presidential Campaign, Trump had abused freedom of speech to propagate an election campaign based on lies, racism, bigotry, falsehood, misinformation, fake news and conspiracy theories, even going so far as to proclaim that he could ‘stand in the middle of Fifth Avenue and shoot somebody’ without losing voters or facing prosecution.[2] Also in 2016, Trump announced his willingness to pay the legal defence fees for supporters who engaged in violence against anti-Trump demonstrators.[3] Such rhetoric has resulted in numerous threats and acts of violence against Democrat politicians and the media since Trump entered the political spotlight. Inasmuch as the Democratic Party and media made half-hearted attempts to call Trump out on his behaviour in 2016, such actions were condemned as politically-correct censorship that stifled the sacrosanctity of freedom of speech.

Had Trump’s behaviour in 2016 occurred in isolation from the wider context of US politics, a defense of Trump’s right to be as rhetorically obnoxious as he wished could hold some water. However, further commentary and ongoing investigations into the Capitol Hill Riot of 6January 2021 point to a far more disturbing picture than would be the case if Trump were nothing more than a TV showman engaged in flamboyant grandstanding. Brookings Institution Senior Fellow Fiona Hill, who was involved in testifying against Trump during the 2019 Impeachment Hearing, referred to the riot as a coup by Trump in an attempt to retain power beyond his term in office. Hill’s assessment is based on events that took place in the run-up to the 2020 US Presidential Election, during which Trump’s growing recognition of the probability of an electoral loss saw his adoption of incremental measures designed to unlawfully tilt the election result in his favour. First, (and among other measures) Trump sought to counter public criticisms of his administration’s policies by discrediting the mainstream media as ‘the enemy of the people’ – a strategy also undertaken by Hitler – whilst exempting conservative channels such as Fox News that toadied up to his lies, misinformation and fear-mongering from the label of ‘fake news’; second, during the 2016 campaign, and over the course of his administration, Trump repeatedly sought to stack the courts with his loyalists, whilst repeatedly calling on the courts to ‘lock up’ his opponents over fabricated charges that Trump misled his followers into believing in; third, over the course of both the 2016 and 2020 campaigns, Trump made repeated, unfounded claims of electoral-rigging by the Democratic Party, lies that had no basis in reality, but which were nonetheless believed by his supporters in conservative strongholds in the country.[4] To Hill’s analysis, I would add a further development that has begun to emerge: in response by the actions of Tweeter, Facebook and other social media platforms in banning him over his incitement of the Capitol Hill Riot of January 2021, Trump has cast himself as a victim of Big Tech censorship.[5] The far-right Parler social media platform has similarly denounced Big Tech censorship in response to being removed from Google and the corresponding loss of revenue.[6] Although Trump and Parler have denounced this infringement of their freedom of speech, one suspects that there is an element of crocodile tears involved – given the extent to which their views are antithetical to the political mainstream, they doubtless have few qualms about suppressing opposing viewpoints with as much enthusiasm as Hitler did with the passing of the Enabling Act.

Lest readers assume that this commentary is calling for the suppression of freedom of speech itself, I emphatically emphasise that this is not my purpose. I am in agreement that freedom of speech is a necessary check to hold politicians accountable for their actions. In the context of the US 2020 elections, freedom of speech and the media was crucial in exposing the lies and misinformation that Trump and his cronies peddled, thence leading to Trump’s downfall. Rather, what I am arguing is that there are limits to the extent to which societies should embrace freedom of speech. The latter should not be considered in absolute terms in granting irresponsible individuals carte blanche to peddle in demagoguery, misinformation and lies for the purpose of sowing discord that spews out in the form of violence that disrupts the democratic process.

So, dear J: The events of 6 January 2021 have demonstrated that unthinkable assaults on democracy and freedom of speech can take place, even at the heart of the most powerful democracy on earth. Under these circumstances, absolute freedom of speech can be turned into a weapon by irresponsible demagogues seeking to threaten the democratic process. Hence, my argument about why freedom of speech is not absolute, nor should it be so – because it is necessary to safeguard society against irresponsible demagogues (yes, they actually exist) who are willing to abuse the freedom of speech to destroy the societies that have given them this freedom. I certainly was not offended by the debate on the extent to which freedom of speech should be embraced!