A Debate on What Liberalism Is and Isn’t

Stephan Haggard rebuttal to essay by Clifford Bob:

Do international organizations made up largely of liberal democracies behave differently than those made up of backsliding states or those that are illiberal or authoritarian in nature? Clifford Bob challenges the value of considering regime type as a useful analytic tool for understanding global governance. He observes that nominally liberal international institutions might promote illiberal values, and uses the Digital Services Act (DSA) of the European Union (EU) as a test case. By designating regimes as liberal or illiberal, Bob argues, scholars are injecting normative evaluation into their characterization of countries, parties, and social movements. Rather, scholars should adopt his “rival networks” approach, which considers competing political forces in a more neutral manner. According to Bob, the EU’s efforts to police disinformation and hate speech is regressive—at least from U.S. First Amendment standards—and reflects the interests of what he calls a “speech control network,” which stands in opposition to a “speech rights” one.

I argue that developments around free speech in the EU demonstrate the enduring value of distinguishing liberal and illiberal states and social movements and the effects both can have on global governance. Bob’s argument that political, legal, and norm contestation might be studied in coalitional terms—as a result of competing networks—is hardly controversial. But Bob underestimates the extent to which regime type and the identity of political parties and movements have causal effects on what international organizations do while overestimating the differences on these issues among the advanced industrial states. He mischaracterizes alternative ways of handling the tradeoffs between free speech and other political goods, such as those methods adopted by the EU, as “illiberal,” despite his distaste for the term. He also wrongly believes that core concepts in political science can be stripped of their fundamental normativity.

With respect to the policy implications of his claims, he appears to defend an American diplomatic initiative around free speech, carried by Vice President JD Vance to the Munich Security Conference. That initiative—if it was one—aligns the United States not with free speech norms but with their opposite. This squabble is unlikely to have any material effect beyond further alienating our Western European allies and making the United States look increasingly hypocritical as it experiences its own illiberal political turn, including with respect to free speech.

It is useful to start by considering some simple descriptive statistics on freedom of expression in the United States and Europe. The exercise demonstrates that there are in fact very good reasons to distinguish between liberal and illiberal regimes and political and social movements. The V-Dem Institute’s freedom of expression index seeks to capture the extent to which governments respect press freedom, the freedom to discuss political matters, as well as the freedom of academic and cultural expression. The figure below considers the path of this indicator in the United States and the EU in the postwar period; scores closer to zero reflect suppression of free speech while scores closer to one indicate strong protections. The United States starts the era with significantly stronger protection of free speech but by 1990, the EU and the United States had essentially converged, precisely as the European Union was taking steps to deepen political, economic, and social integration. Although the United States scores marginally higher, the differences fall within the confidence intervals.

Freedom of expression has deteriorated marginally in both the United States and the European Union. In the EU, one explanation is the emergence of backsliding democracies and even countries that were outright authoritarian in form during recent history: Hungary and Poland typically top the list, but it can be extended to developments at various points in Romania and Slovakia as well as countries with aspirations to membership such as Serbia and North Macedonia. In contrast to Bob, leaders such as Hungarian prime minister Viktor Orbán have not shied away from the “illiberal” label but rather have embraced it. Unfortunately, these political developments have real consequences for freedom of expression, as the V-Dem data shows. When illiberal leaders take power, freedom of expression wilts through a variety of mechanisms: biased regulation, direct government control of the press, declining media pluralism, barriers to government access, surveillance, and even outright intimidation of journalists. When those mechanisms are reversed, as happened recently in Poland, freedom of speech protections are restored.

Bob is concerned about differences in how the United States and EU deal with the challenges of free speech in the digital age—particularly the EU’s expanding efforts to control hate speech—and rejects the idea that the liberal-illiberal binary is useful in understanding those challenges. But he has little to say about the patently more serious risks to freedom of expression in Europe from illiberal regimes, precisely those where the liberal-illiberal dichotomy seems completely apt.

Moreover, our understanding of the challenges to free speech are not limited to countries that have undergone backsliding or authoritarian regress. They also can be found in the parties and social movements that are mimicking the Hungarian and Polish playbooks. It is not hard to imagine a counterfactual Europe in which far-right political parties and social movements gain power and translate their policy preferences into governance norms. Institutional support at the community level for freedom of expression would go the way it did in the countries that went down these illiberal paths.

Despite the fights over the DSA, a liberal EU will always be more protective of free speech than an illiberal EU. The fact that the Trump administration has embraced political figures like Orbán and remained completely silent about freedom of expression in more autocratic countries such as Russia is a testament to the disingenuousness of the Vance critique. Where is the defense of free speech when genuinely needed?

Setting aside the fact that regime type does track closely to actual defense of free speech at the regional and national level, Bob could argue that those wider challenges are not his writ: rather, he is focused more narrowly on the challenges to free speech posed by the Digital Services Act. Here, the argument is somewhat hard to follow because Bob is simultaneously claiming that he dislikes the liberal-illiberal binary while at the same time invoking it to make his core argument: that the nominally liberal EU is pursuing illiberal policies (even if he relabels the differences, an issue I return to below).

But as the V-Dem data suggests, it is precisely here that Bob’s reliance on the liberal-illiberal binary—or his alternative formulation of it—is inappropriate. Viewed from a broad comparative perspective, there is little difference between the United States and Western Europe in the protection of free speech. The manufactured spat between the United States and Europe does not constitute a battle between liberal and illiberal governance as Bob seems to suggest. Rather it reflects the variety of free speech norms among regimes that are broadly liberal democratic in form, norms that have arisen in part from quite different historical circumstances and reflect different assessments of political risk. Bob’s treatment of the DSA emphasizes the controls placed on free speech but is completely silent on the reasons for those restraints and why well-meaning liberals might reach different conclusions around the bounds of the permissible.

The United States’ protections of free speech in the First Amendment and Supreme Court interpretations of it constitute an international outlier, buttressed by particularly strong public support for those protections. But it should not be surprising that a region devastated by the rise of genuinely illiberal fascist regimes might be reluctant to grant free speech rights to Nazis and those inciting hate and even violence against vulnerable minorities; arguments underlining the risks of such tolerance have been a leitmotif since Karl Lowenstein’s 1937 essay on “militant democracy.” From Bob’s perspective, the Digital Services Act appears to reflect the victory of a “speech control” network over a “speech rights” one. But from a European perspective, the DSA was a response to an effort by American platform companies to impose particular U.S. norms on democratic societies that don’t agree with them.

These differences are by no means limited to the transatlantic debate that Bob chronicles; they are alive in the United States as well. To cite a settled case, should the First Amendment permit cross burnings (see Virginia vs. Black)? Should that decision to allow states to ban cross burnings under certain circumstances reflect a defeat for a “speech rights” coalition? Or did it reflect a reasoned judgment that the risks of cross burnings in some cases outweighed the costs of regulating them? The question can be replayed across myriad issues on which Americans disagree among themselves. Does the First Amendment require that we permit social media companies to post Russian content designed to undermine the integrity of American elections? Does it allow for unimpeded circulation of violent pornography among consenting adults that children can easily access? What does it say about the deportation of foreign students who peacefully protest on American soil? And given the recent focus on antisemitism, should it permit the characterization of Jews or immigrants as vermin, including on college campuses?

These debates are directly connected to the challenges democracies currently face, and Bob pays little attention to reasons why well-meaning liberals might seek to regulate free speech. This debate goes far beyond the scope of this essay, but there is mounting evidence on the deleterious effects that unregulated social media companies might have on democracy itself; UC San Diego’s Barbara Walter has summarized these debates and noted how social media can even contribute to the onset of civil war. The risks include but are not limited to the ability to propagate “big lies” such as that the 2020 U.S. presidential election was stolen, the vilification of minorities and incitement against them, the amplification of dangerous scientific disinformation, the effects of social media on debilitating and extreme polarization, and the adverse consequences of closed media ecosystems—on both left and right—on voter willingness to access unbiased information.

I do not object to Bob’s attempt to interpret the DSA in terms of competing coalitions; again, this is hardly novel. But I am skeptical of the claim that his alternative will be able to strip normativity out of political science research. Rejecting the liberal-illiberal binary, Bob prefers an alternative interpretation of the DSA controversy that pits a “speech control” against a “speech rights” network. Despite his claims, Bob’s alternative formulation could not possibly be more normatively loaded.

My own personal preferences are that the First Amendment has generally served the United States well and that European hate speech legislation has been vulnerable to mission creep and created as many problems as it has solved. European law will probably adjust as the competing networks Bob identifies—however labeled—fight out the issue. But similar processes are continually at work in the American court system as new challenges arise and are litigated. The most important point to underline, though, is that the DSA arose among an international organization still dominated by democracies and that it is not seeking to gratuitously control speech. Rather, Europe is navigating its distinctive political history and traditions, profound challenges to democracy that are emanating from illiberal political movements, and a new social media world that we still don’t fully understand.

Finally, it is impossible to disentangle the discussion of the DSA from this moment in American history, which appears to be entering a decisively illiberal phase. Vice President JD Vance went to Europe at a critical juncture in the Western alliance, with the fate of Ukraine on the line, only to lecture the Europeans on differences around free speech. But the bona fides of the administration on this issue have subsequently been revealed and underline the value of distinguishing between liberal and illiberal political parties and social movements: the relentless attacks on the media, the efforts to shape speech and even research on American university campuses, prohibitions on discussion of diversity, equity, inclusion, and even terms like “gender;” cowing legal firms who provide the ultimate line of defense on freedom of speech; removing books from the libraries of the service academies, and deporting foreign citizens for expressing dissident opinions—the list goes on. Were the hypocrisy not so open and shut and other issues so obviously pressing, a transatlantic debate on the DSA might well be worth having. The United States can raise its objections, and the Europeans could point out their concerns about the deterioration of free speech norms in the United States. But Vance had no serious interest in such a conversation. In the current context, Europeans are likely to see the critique of the DSA as nothing more than a self-interested move by platform companies to evade regulation warranted—in their view—by the European democracies’ different approach to the issue of free speech.

 

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Clifford Bob response:

Stephan Haggard seems to value my rival networks method, calling it “hardly controversial.” Yet the literatures on global governance and transnational networks have focused primarily on left-wing movements, in some cases assuming their goals are preferable or inevitable. My method encourages ideologically balanced analysis, highlights the contingent outcomes of long-term conflict, and urges that scholars strive toward objectivity. I did not argue that political concepts can be “stripped of their fundamental normativity.” I do believe that purposefully characterizing movements and parties in pejorative terms can easily prejudice and distort research. Crusader scholars produce unreliable work, likely contributing to today’s replication crisis.

My labels for the rival networks reflect their core goals and do not contradict my approach. The “speech rights network” seeks stronger protection of the individual right not only to express one’s opinion but also to hear the opinions of others. The “speech control network” seeks limits on expression based on state, nongovernmental organization, or corporate designation of certain speech as “hate,” “misinformation,” “disinformation,” and the like. The DSA stands as an example. So do recent U.S. government policies restricting speech about COVID-19’s origins, vaccine effectiveness, Israel, and more. Nor have key members of the network been shy about what they are doing, albeit expressed in euphemistic terms. For instance, the Biden administration proposed a Disinformation Governance Board, and the United Kingdom’s Center for Countering Digital Hate states that it aims to “stop the spread of online hate and mis- and disinformation.” European leaders may claim they are fending off American corporations imposing the First Amendment. But European citizens question whether governing elites seek to preserve democracy—or protect their own preferences, prerogatives, and power.

Haggard asserts that I underestimate the extent that regime type affects international organization (IO) behavior. This issue was not a subject of my post. But I did show that European states, with weaker constitutional protections for speech than the United States, have now adopted the DSA, which would likely be unconstitutional here. Haggard’s counterfactual, that if “far-right political parties” (a vague term) gained power, freedom of expression would erode further, is not obvious. I personally deplore Trump administration actions that threaten speech rights. But it is hard to say that these pose worse threats than the Biden administration’s fight against “disinformation” (now ended) in which millions of Americans had truthful statements, scientific hypotheses, and political opinions suppressed.

If such policies could be implemented for years in the United States, the threat is all the worse in European states, where citizens are already being arrested and punished for criticizing politicians, protesting policies, or offending protected groups. Contra Haggard, there is much evidence that Europe’s “well-meaning liberals” are “seeking to gratuitously control speech.” Nor should we accept Haggard’s characterization. An equally plausible hypothesis is that they are self-interested. Like religious and political leaders in Gutenberg’s time, they may fear that freer information flows and a robust marketplace of ideas will threaten their rule.

Haggard says I overestimate differences on speech issues between the United States and Europe, dismissing them as a “manufactured spat.” But the conflict, which cuts across those societies, goes to a bedrock liberal principle: that competent adults should be permitted to express and hear the widest variety of ideas, opinions, and hypotheses, then make up their own minds. The alternative is having states and IOs short-circuit democracy and science by banning disfavored views, nonparadigmatic theories, and “bad” political parties. The U.S. record is far from perfect. But the First Amendment as currently interpreted comes far closer to that principle than the DSA.

Haggard cites European history to explain the continent’s policies, but the role of free speech in the fall of Weimar is debatable. So is the “militant democracy” concept promoted by Karl Loewenstein and closely related to the ideas of Carl Schmitt. Against them, Austrian legal theorist Hans Kelsen argued that empowering one set of political actors to decide which others should be banned is profoundly antidemocratic. This is particularly true because there are viable alternatives to self-appointed “militants” unilaterally countermanding a democratic constitution to censor speech and ban law-abiding political parties. Madisonian checks and balances have served the United States well for centuries. So has the Supreme Court’s First Amendment jurisprudence.

In this context, Haggard’s description of the Virginia v. Black decision is incomplete. The facts are critical, showing that in Black as in the rhetorical questions Haggard asks about hard First Amendment cases, current American jurisprudence can protect liberalism and other important values without requiring militant democracy’s suppression of speech. In the Black case, the Supreme Court stated that cross burning can have symbolic and political meanings despite its detestable nature. It therefore held unconstitutional those portions of a Virginia statute making cross burning prima facie evidence of an illegal intent to intimidate. Under the controlling law, the Supreme Court’s Brandenburg v. Ohio decision, intimidation or “true threats” such as burning a cross on an African American’s property are not protected speech, just as incitement to violence and harassment are not. By contrast, policies to ban or control “hate speech” and “disinformation” fail basic constitutional principles: that government regulation of speech, especially political speech, must be viewpoint neutral; and that restrictions can only be imposed in “emergency” situations, which First Amendment scholar Nadine Strossen defines as speech that “directly, demonstrably, and imminently causes certain specific, objectively ascertainable serious harms.”

On a personal note, I applaud JD Vance’s speech at the Munich Security Conference. I also criticize his hypocrisy—and that of other Trump officials who were Biden-era free speech champions. However, pointing out the shortcomings of our European friends, especially those who have long received huge benefits from U.S. taxpayers, is legitimate. Nor must doing so be leavened with critiques of authoritarian countries. The “fate of Ukraine” has no relevance to this issue. If European leaders’ own attacks on liberal principles receive greater condemnation, all the better for the fate of liberalism and democracy around the world.