WHAT'S HAPPENING IN PORTLAND SHOWS THAT FREE SPEECH ALONE IS NOT ENOUGH TO GUARANTEE OUR FREEDOM
It must be a terrifying experience. You’re walking through the city late at night when an unmarked van pulls up and heavily armed men in military fatigues leap out and, without identifying themselves, bundle you into their vehicle. What must go through your mind as you are spirited away? Are these goons government agents or members of a far-right militia looking to rough up anyone who looks vaguely antifa?
Snatch squads operating outside of the rule of law are a familiar feature of a police state. But this is Portland, Oregon, a liberal bastion in a nation that likes to proclaim itself ‘The Land of the Free’. Last week, Donald Trump dispatched federal forces to the city with the task of protecting federal buildings from protests in the wake of the killing of George Floyd.
Drawn from members of the Customs and Border Protection, Immigrations and Customs Enforcement, the Transportation Security Administration and the Coast Guard, these law enforcement officers are trained in guarding the US border, not handling crowds at demonstrations. While they are constitutionally authorised to protect federal buildings, their remit does not run to patrolling the streets of major cities detaining people without revealing who they are.
The circumstances under which law enforcement officers can conceal their identities are highly specific – the infiltration of criminal organisations would be one example. But the ground rules for policing a public order situation require officers to identify themselves individually so that they may be held accountable. When badges are hidden and detentions conducted anonymously in public spaces, it is a tacit admission that officers are acting outside of the law.
These tactics have provoked outrage in Portland and beyond. Both Ted Wheeler, the city mayor, and Ron Wyden, the senior senator from the state of Oregon, have decried the behaviour of federal operatives as unconstitutional. The Department of Homeland Security, under whose auspices these forces are operating, has been sued by the American Civil Liberties Union and the chairs of three House committees have called for an internal investigation into the matter.
Writing in the Atlantic, Anne Appelbaum has described Trump’s targeting of Portland as “performative authoritarianism”, designed to shift the narrative away from the coronavirus pandemic and onto what the president’s aides have called the “left-wing fascists who want to destroy America”. As the polls begin to show Americans coming together in their anger at his deadly mishandling of the nation’s response to Covid-19, Trump is seeking to provoke a reaction from progressives that will provide him with material to reopen the partisan divide that delivered him to power in 2016.
That Americans are forced to resort to legal action to preserve their constitutional rights highlights the flaw in relying on freedom of expression as the sole guarantor of liberty. The argument that free speech is the best disinfectant, that words alone are enough to protect us from tyranny, has not been borne out by the past four years. Even with a free press and near universal access to social media, it has not been possible to hold Donald Trump to the conventional standards of his office.
The liberating power of free speech relies on good faith – the belief that truth will out and the liar will withdraw in shame. But what if the liar sees shame as an impediment to power and his supporters are prepared to overlook his deceit because it delivers their agenda? The rise of Donald Trump suggests that people are willing to believe that 2+2=5 if it is politically expedient.
In the crisis of legitimacy created by the election of a pathological liar, freedom of expression offers scant defence against a president whose followers see his refusal to be held to account as a sign of strength. When facts are relegated to the status of opinions and truth becomes a matter of partisan perspective, an unswerving dedication to free speech at all costs begins to undermine our freedom.
When all points of view are valid, the cacophony of opinion makes it hard for citizens to discern what is really happening. Suspicion that there is a plot to thwart the will of the people takes root and, once trust is lost, bad faith becomes the default position for debate. And if you believe in the existence of a deep state plot to prevent everyone finding out that 2+2 does indeed equal 5, then there’s an algorithm that will take you down a rabid hole of like-minded theorists.
It was Hannah Arendt who wrote that the ideal subject for totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists. Her observation is a chilling reminder of how, when vast swathes of the population are willing to dismiss facts that they disagree with as ‘fake news’, free speech can have a toxic effect on society.
Which is not to say it should be abandoned or curtailed. Freedom of expression is a fundamental human right that has to be defended. But at a time when authoritarian leaders are trampling the conventions of liberal democracy and exploiting the right of free speech in order to disorientate and divide, we should recognise that freedom relies on more than just the liberty to say whatever we want.
To protect us from tyranny, freedom requires accountability. The on-going struggles for social and economic justice are linked by their determination to hold the powerful to account. Freedom of expression is the front line in that battle, as the protesters in Portland have demonstrated, taking to the street night after night to exercise their First Amendment rights under the US constitution.
But when that line is breached by a regime that refuses to play by the rules laid down by the Founding Fathers, then we have to fall back onto a much older idea, first articulated in Magna Carta, that provides a stronger guarantee of our freedom, one grounded in universal accountability: the principle that no one, no matter how mighty, is above the law.