Capitol riots: When free speech kills democracy - analysis

Free speech and the freedom to protest are critical oxygen to democracy.

Protesters climb the wall of the US Capitol, January 6, 2021.  (photo credit: Courtesy)
Protesters climb the wall of the US Capitol, January 6, 2021.
(photo credit: Courtesy)
Famed US Supreme Court Justice Oliver Wendell Holmes is cited by many as inventing the phrase that one person’s freedom ends where another’s begins.
Without getting into the debate over Holmes’ legacy on free speech, Wednesday’s pro-Trump protests in Washington, which morphed into a mob attack on the US Capitol, is the most blatant wake-up call of many recent incidents that the limits of free speech and protests may need to be reconsidered.
Free speech and the freedom to protest are critical oxygen to democracy.
But free speech and protesting unhinged can also kill, as it did with one of the rioters on Wednesday.
In the modern era of social media disinformation campaigns, of a new absence of courage among the political class to condemn speech that undermines the rule of law, and a general trend toward tribalism in the US, Israel and elsewhere, it is probably long past time to recognize that new limits are needed on speech until these trends become less volatile.
It would be more ideal if all sides of our societies could have an adult conversation and merely agree, without legislation, to act better and more respectfully.
Incidentally, for decades most European countries have had certain limits barring some kinds of speech that the US’s more extreme free speech laws and that Israel’s more extreme anything goes culture allow.
In an age where violence against the US Congress, the Israeli Supreme Court, Attorney-General Avichai Mandelblit or Prime Minister Benjamin Netanyahu would be unthinkable, maybe such limits would be unnecessary.
But we already know that Russia, China, Iran and others are trying to systematically fool and inflame Americans into hating each other with sophisticated disinformation and doctored media.
We also know that foreign actors and some irresponsible domestic political officials in both the US and Israel have used social media to do the same at times.
In an era where some Israeli officials talk about using a D-9 bulldozer on the Israeli Supreme Court, where protests in the US and Israel on both the Left and the Right sometimes seem unwilling to accept either election results or decisions by law enforcement, we may need to protect ourselves from ourselves – especially on social media.
Both Democrats and Republicans have been furious with Facebook and other social media giants over their conduct during the 2016 and 2020 US presidential elections.
They pretty much agree that bipartisan regulation is needed to set standards for social media, especially surrounding elections, so that extreme and destabilizing foreign and domestic speech will be contained on both sides of the aisle.
Israeli law enforcement has been handling much of the issue in Israel, but without new legislation, the protection it can give is limited.
There may also need to be some limits on public figures and on protests.
Democracy would be in grave danger if no protests were allowed outside the attorney-general’s office (on one end of today’s controversies), or the Prime Minister’s Office (on the other end.)
But unending and constant protests, especially some done without permits, aid in ignoring social distancing in the corona era, create escalation, and a new potential for physical violence and radicalization.
The Israeli Supreme Court has placed some limits on how close to certain buildings protesters can stand, and how late at night the protests can last.
But the legislature may need to get involved to consider other limits, as long as there is continued robust space to protest and limits are bipartisan.
This year has seen public figures use their immunity to blatantly violate court gag orders, threaten law enforcement officials, and declare rivals as dangers to the state.
It is highly problematic for public officials to use their perch to violate laws and cause incitement.
Once again, any limits on public officials’ speech must be bipartisan, and it is likely that deciding on violations and penalties that would make people think twice would need to be carried out by a body that includes non-politicians.
This last point may also be critical to the continued health of democracy in the US and Israel.
There is an important passionate debate about whether the judiciary, the attorney-general and other non-elected officials have too much unchecked power.
Maybe reforms are needed for greater oversight over unelected officials.
But the breakdown in the US, especially Trump’s last-minute plea to get Vice President Mike Pence to overturn the election, is a cautionary tale.
There is a reason we have unelected officials in certain roles.
It is so that in volatile times, those officials will be far more likely to act in the long-term interests of the state and its citizens regardless of party affiliation.
Pence fulfilled his duty to serve as a mere vote counter.
But what if he had not?
In any new social contract to rebalance free speech and the right to protest, especially on social media, relying on non-elected officials selected on a bipartisan and apolitical basis may at some point be the only way to ensure fairness.