In his speech last week at the Munich Security Conference, JD Vance pressed European leaders to stop excluding extremist parties from government. Alluding in particular to Germany’s neo-Nazi Alternative for Germany, or AfD, he accused European leaders of “running in fear of your own voters”. The US vice-president underscored the point by then meeting with the AfD candidate for chancellor.
In his view, these extremist parties should be welcomed into the mainstream because they reflect voters’ concern about migration. He evidently was not troubled that the AfD also has a history of using Nazi rhetoric, making racist and antisemitic comments and plotting to overthrow the German government.
What could go wrong with simply trusting the people? Germans evidently have a more acute memory than Vance of 1933, when voter preferences led to Adolf Hitler becoming chancellor and shutting down Germany’s democracy. It was all the more shocking that Vance made his comments just after visiting the site of the Nazi concentration camp in Dachau, the culmination of Hitler’s Third Reich.
Yet Vance did hit on a conundrum – how to respect the freedom of speech that is essential for democracy without unleashing popular forces that would shred the rights at democracy’s core?
As a career human rights lawyer who grew up with the first amendment and attended Yale Law School, as Vance did, I understand his free-speech absolutism. But since then, I have worked around the world and come to appreciate a more qualified approach to free speech. Notably, the leading human rights treaty on the subject, the international covenant on civil and political rights of 1966, allows limitations on speech to protect national security, public order, or public health or morals. It also provides that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. Most democratic governments prefer this more limited conception of free speech because they recognize the fragility of democracy and want license to defend it.
But to resurrect the adage that constitutional rights should not be “a suicide pact” does not explain how democracy should be defended. The danger of creating exceptions to free speech is that it risks unwarranted government censorship and can lead to autocracy.
The US has tended to avoid the problem by delegating the regulation of public speech to the private media, but that solution is no longer viable. For decades, Americans received most news through a handful of established media outlets that kept discourse within mainstream parameters. Even as growing numbers of people received their news through social media, we relied on private platforms to use content moderation to limit extremism.
There was always something perverse about democracy entrusting such an existential issue to a handful of private institutions, but in any event, those days are now gone. The traditional media have become just one of many avenues for the dissemination of information. The major social-media platforms have largely abandoned content moderation. And X, formerly Twitter, still the most important platform for news and politics, is tainted by the rightwing and often bizarre missives of its owner, Elon Musk, whose algorithm forces his opinions to the top of everyone’s content feed. The need for a governmental role is increasingly recognized.
But how can we trust governments to protect democracy – to limit censorship to genuine hate speech or dangerous disinformation – rather than silence views that are simply critical or inconvenient? Autocrats such as the Hungarian prime minister Viktor Orbán and the Turkish president Recep Tayyip Erdoğan have found pretexts to shut down independent media and, at times, arrest journalists and civic leaders whose views were deemed too critical. These governments now produce managed elections on a playing field that is sharply tilted toward the ruling party.
Even a well-established democracy is capable of unwarranted censorship. Germany has suppressed legitimate criticism of Israel. Vance is right that we must not allow dislike of certain controversial views, such as limiting immigration, to exclude those views from the political domain. Such censorship reinforces the sense of some people that the democratic system is leaving them behind, which makes them ripe for autocratic appeals. Only positions that undermine core rights and democratic values should be viewed with suspicion.
One option has been to entrust the policing of permissible speech to governmental institutions with some independence from the ruling party. Germany, for example, has a panoply of institutions devoted to blocking the emergence of extremist political parties. But Trump has shown that institutional checks on executive power are not immune to tampering.
Ignoring the problem – saying, as Vance seems to advocate, that government has no role in policing speech – may not yield a level electoral playing field either. In today’s world of bots fueled by artificial intelligence, Russian propagandists and others are quite capable of using social media to flood the public with disinformation. Romania illustrated the threat in December when an obscure far-right pro-Vladimir Putin candidate emerged as the leader of the first round of elections for president after 25,000 newly activated accounts inundated the information space. At the same time, the Trump administration is shutting down an important antidote – USAid’s support for human rights defenders, democracy promoters and independent journalists.
Ultimately, we must recognize the limited capacity of law. There is no way to write laws that enable only censorship of threats to democracy without also opening the door to censorship of merely disfavored views. The traditional American answer is to avoid any governmental role – as Vance advocates – to assume that the risk of tyranny by the people is less severe than the risk of tyranny by the government – but in today’s world of populist autocrats, that distinction is less clear.
I see no alternative but to recognize that, beyond laws, we need leaders of integrity to apply those laws. Integrity is a pliable word. I’m sure every autocrat thinks of himself as having that attribute. But there are certain virtues that are necessary for the defense of democracy.
We must seek leaders who accept responsibility not only for advancing particular political programs but also for reinforcing democratic values. We need leaders of restraint who do not grasp for power by whatever means necessary but respect constitutional injunctions, legal rules, and customary limits. We need leaders who promote a national community where the rights of everyone deserve respect rather than pushing an us-v-them agenda that excludes demonized segments of society from that community.
In today’s sharply divided societies, it may seem anachronistic to seek politicians with virtues of restraint and integrity rather than ones dedicated to a no-holds-barred quest for power, but I see no other option if we are to preserve our democracy. Trump lacks that temperament and relishes jettisoning taboos and flouting democratic norms. But just because democratic virtues can be breached does not mean they are elusive. For much of US history, Americans demanded leaders of such character. Trump is an anomaly who must not be taken as the norm.
Vance is right that in the end we must look to voters to elect such leaders. But elections do not happen in a vacuum. They are influenced by, among other things, the campaigns that candidates wage. In the United States, Democrats seem to have concluded that the defense of democracy doesn’t poll well compared with more bread-and-butter issues. But given the severity of the autocratic threat, proponents of democracy need to find more persuasive ways to elevate the issue. Regardless of the rules that govern free speech, electing leaders with the temperament to respect the laws and traditions that underwrite democracy is essential if our system of self-governance is to survive.
With four more years before the next presidential election, the public also needs to find ways to make itself heard now. Although the Republican party seems to have accepted his outrages, Trump is sensitive to public opinion. The key is to speak out, to let him know that his steps to undermine democracy are beyond the pale – that they are not why he was elected and will not be countenanced.
Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton’s School of Public and International Affairs. His book, Righting Wrongs, will be published by Knopf on 25 February.
