On February 14, 2025, the Vice President of the United States, J.D. Vance, accused European countries of being too restrictive in their approach to freedom of speech at the Security Conference in Munich. The message: the United States should be taken as an example, especially under the Trump administration. In fact, the United States has historically had an extremely liberal approach to freedom of speech, and the Trump administration in particular has an interest in further expanding the boundaries of what can be said, at least where it is conducive to its right-wing populist rhetoric (otherwise it does not shy away, even from censorship). The speech at the security conference shortly before the elections in Germany was intended as support for European parties pursuing a similar goal, not least the German party AfD. From a philosophy of language perspective, the handling of freedom of speech in the United States is problematic, even apart from the Trump administration’s attempts to further push the boundaries of what can be said. Among other things, it is based on a false understanding of linguistic derogation and manipulation.
Freedom of speech is enshrined in the First Amendment to the United States Constitution. It is only restricted by a few decisions of the Supreme Court. For example, restrictions on time, place and manner may be permissible if they can be justified independently of the content of the speech, and only if there are sufficient alternative times, places or ways of conveying the same content. There are virtually no restrictions on the content of speech. Exceptions are defamation and incitement to imminent unlawful acts.
Common arguments against such an understanding of free speech include that most uses of derogatory and manipulative language and the spread of misinformation can take place under the guise of free speech. The damage this does to a democracy, the argument goes, can be seen in the context of Donald Trump’s presidency, not to mention the psychological and social damage that the use of derogatory and manipulative language causes to individual citizens.
For these reasons, most European democracies have a more restrictive approach to freedom of speech. Germany, for example, restricts Article 5 of the Basic Law on freedom of opinion, art and science through paragraph 130 of the German Criminal Code on incitement to hatred. This prohibits, among other things, maliciously insulting and belittling other people and thereby violating their dignity. Such restrictions on freedom of speech have historical reasons in Europe (and especially in Germany, owing to the role of propaganda in Nazi Germany).
Nevertheless, they are often criticized. For instance, Daniel Jacobson argues that restrictions affecting the content of speech ultimately lead to more harm than they prevent, especially as governments cannot be trusted to distinguish accurately and impartially between “bad” and “good” speech. The best way to counter pejorative and manipulative speech is more speech in the form of counter-arguments and corrections, e.g. in the form of fact checks.
As Tali Mendelberg argues in the book The Race Card, before the 1930s it was acceptable in American political discourse to express racist attitudes (including the use of pejorative language). By the 1960s, this norm of inequality had continued to erode, and then, according to Mendelberg, it flipped: overt racism became increasingly unacceptable and most voters did not want to be seen as racist in front of others or themselves. As a result, racist attitudes were increasingly expressed implicitly in political discourse. Put simply, the implicit content of a statement differs from its explicit content in that the latter can be negated or denied (“That’s not true”). Countering implicit content usually involves considerably more linguistic effort. One type of implicit content that illustrates this is presuppositions.
When I respond to a statement of “Even Germans can read” with “That’s not true,” I have not denied the pejorative content of the statement that the intellectual abilities of Germans are not particularly well developed. Rather, I am denying that Germans can read. This has to do with the fact that the pejorative content is presupposed, while it is only explicitly claimed that Germans can read. In order to counter the pejorative presupposition, a somewhat greater linguistic effort is therefore required, such as “Hey! Wait a minute, what does ‘even’ mean here? Germans are just as clever as we are.”
Something similar applies to the use of so-called dogwhistles, a form of coded language that politicians often use to address a specific group of voters without this being apparent to the general public. For instance, throughout his campaign for the US presidency in 2016, Donald Trump used the seemingly neutral term “political correctness” in order to attract White power supporters without addressing them directly. As Hinton points out in his article “What White Power Supporters Hear Trump Saying,” “for White power actors, political correctness is explicitly about race struggle” and is seen “as part of a plot to diminish and even destroy the White race.” Hence, White power supporters understood Trump’s opposition to political correctness as him sharing their racist concerns. At the same time, Trump could have denied any intention to attract White power supporters by pointing out that he was just expressing his opposition to political correctness in the sense of language, policies or measures that are intended to avoid offense or disadvantage to members of particular groups in society.
This shows that there are linguistic mechanisms, such as using presuppositions and coded language, that make it much more difficult for addressees to counter derogatory and manipulative content in the form of counter-speech. But then liberal considerations (à la Mill) that even these destructive uses of language can simply be countered by more speech fall short. For instance, as we have seen above, in order to counter the derogatory presupposition of “Even Germans can read,” it is not enough to respond with “This is not true.” In fact, such a response even risks accepting the derogatory presupposition that the intellectual abilities of Germans are not particularly well developed, as it only denies that Germans can read.
It does not follow from this that all implicit derogation or manipulation should be legally prohibited. Similar to the restrictions on explicit speech in democracies with a more restrictive approach to freedom of speech, such as Germany, the severity of the derogation or misinformation (e.g. Holocaust denial) could also play a role in implicit speech. However, since liberal considerations (à la Mill) do not back up the expression of implicit content, it is very likely that—even under a very liberal understanding of free speech, as in the United States—implicit speech should no longer be legally protected at a certain level of severity of the derogation or misinformation expressed. Especially as there are other ways to convey the same content, e.g. an explicit statement of “Germans do not have particularly strong intellectual abilities.” As we saw at the beginning, even according to American case law, restrictions on manner may be permissible if they can be justified independently of the content of the speech and if there are sufficient alternative ways of conveying the same content.
Now, the benefits of such restrictions might not be entirely obvious at first glance. If it is still possible to explicitly express derogatory and manipulative content, what will be gained for countries with a very liberal approach to free speech if we restrict its implicit communication? For one thing, we have just seen that it is easier in linguistic terms to counter explicit content than what is implicit in an utterance, all other things being equal. Secondly, in Western societies, as Mendelberg would say, there is still a norm of equality in place, so that the explicit expression of racist and xenophobic attitudes is at least not widely accepted. This emphasizes the importance—especially in countries with a very liberal approach to freedom of speech, such as the United States—of continuing to defend this norm of equality by, among other things, defending the boundaries of what can be explicitly said, in addition to legally restricting certain uses of implicit speech. In this way, we can prevent a situation in which everybody feels free to utter racist views. The only way to do this is (and remains) contested.
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