Post Syndicated from Michal Zalewski original http://lcamtuf.blogspot.com/2015/06/poland-vs-united-states-civil-liberties.html
This is the sixth article in a short series about Poland, Europe, and the United States. To explore the entire series, start here.
I opened my comparison of Poland and the US with the topic of firearm ownership. I decided to take this route in part because of how alien the US gun culture may appear to outsiders – and because of how polarizing and interesting the subject is. But in today’s entry, I wanted to take a step back and have a look at the other, more traditional civil liberties that will be more familiar to folks on the other side of the pond.
Before we dive in, it is probably important to note that the national ethos of the United States is very expressly built on the tradition of radical individualism and free enterprise – as championed by thinkers such as Milton Friedman, Friedrich Hayek, or Adam Smith. Of course, many words can be written about the disconnect between this romanticized vision and complex realities of entrepreneurship or social mobility in the face of multi-generational poverty – but the perception still counts: in much of Europe, the government is seen less as a guarantor of civil liberties, and more as a provider of basic needs. The inverse is more true in the US; the armed forces and small businesses enjoy the two top spots in institutional trustworthiness surveys; federal legislators come dead last. This sentiment shapes many of the ongoing political debates – not just around individual freedoms, but also as related to public healthcare or the regulation of commerce. The virtues of self-sufficiency and laissez-faire capitalism seem far more self-evident to the citizens of the US than they are in the EU.
With that in mind, it’s worthwhile to start the comparison with the freedom of speech. A cherished tradition in the western world, this liberty is nevertheless subordinate to a number of collectivist social engineering goals across the whole old continent; for example, strong prohibitions exist on the promotion of Nazi ideology or symbolism, or on the mere practice of denying the Holocaust. The freedom of speech is also broadly trumped by the right to privacy, including the hotly-debated right to be forgotten on the Internet. Other, more exotic restrictions implemented in several places in Europe include the prohibition against disrespecting the religious beliefs of others or insulting any acting head of state; in Poland, people have been prosecuted for hurling childish insults at the Pope or at the outgoing Polish president. Of course, the enforcement is patently selective: in today’s political climate, no one will be charged for calling Mr. Putin a thug.
The US takes a more absolutist view of the First Amendment, with many hate groups enjoying far-reaching impunity enshrined in the judicial standards put forward not by politicians, but by the unusually powerful US Supreme Court. The notion of “speech” is also interpreted very broadly, extending to many forms of artistic, religious, and political expression; in particular, the European niqab and burka bans would be patently illegal in the United States and aren’t even the subject of serious debate. The concept of homeschooling, banned or heavily regulated in some parts of Europe, is seen by some through the same constitutional prism: it is your right to teach your children about Young Earth creationism, and the right trumps any concerns over the purported social costs. Last but not least, there is the controversial Citizens United decision, holding that some forms of financial support provided to political causes can be equated with constitutionally protected speech; again, the ruling came not from the easily influenced politicians, but from the Supreme Court.
As an aside, despite the use of freedom-of-speech restrictions as a tool for rooting out anti-Semitism and hate speech in Europe, the contemporary US may be providing a less fertile ground for racism and xenophobia than at least some parts of the EU. The country still struggles with its dark past and the murky reality of racial discrimination – but despite the stereotypes, the incidence of at least some types of casual racism in today’s America seems lower than in much of Europe. The pattern is also evident in political discourse; many of the openly xenophobic opinions or legislative proposals put forward by European populist politicians would face broad condemnation in the US. Some authors argue that the old continent is facing a profound new wave of Islamophobia and
hatred toward Jews; in countries such as Greece and Hungary, more than 60% of population seems to be holding such views. In Poland, more than 40% say that Jews hold too much influence in business – a surreal claim, given that that there are just several thousand Jews living in the country of 38 million. My own memories from growing up in that country are that of schoolkids almost universally using “you Jew!” as a mortal insult. The defacement of Jewish graves and monuments, or anti-Semitic graffiti, posters, and sports chants are far more common than they should be. It’s difficult to understand if restrictions on free speech suppress the sentiments or make them worse, but at the very least, the success of the policies is not clear-cut.
Other civil liberties revered in the United States, and perhaps less so in Europe, put limits on the ability of the government to intrude into private lives through unwarranted searches and seizures. Of course, the stereotypical view of the US is that of a dystopian surveillance state, epitomized by the recent focus on warrantless surveillance or secret FISA courts. But having worked for a telecommunications company in Poland, my own sentiment is that in Europe, surveillance tends to be done with more impunity, far less legal oversight, and without clear delination between law enforcement and intelligence work. The intelligence community in particular is often engaged in domestic investigations against businesses, politicians, and journalists – and all across Europe, “pre-crime” policing ideas are taking hold.
In many European countries, citizens are not afforded powerful tools such as FOIA requests, do not benefit from a tradition of protected investigative journalism and whistleblowing, and can’t work with influential organizations such as the American Civil Liberties Union; there is also no history of scandals nearly as dramatic and transformative as Watergate. In the States, I feel that all this helped to create an imperfect but precious balance between the needs of the government and the rights of the people – and instill higher ethical standards in the law enforcement and intelligence community; it is telling that the revelations from Snowden, while exposing phenomenal and somewhat frightening surveillance capabilities of the NSA, have not surfaced any evidence of politically-motivated investigations or other blatant impropriety in how the capabilities are being used by the agency. The individualist spirit probably helps here, too: quite a few states and municipalities go as far as banning traffic enforcement cameras because of how they rob suspects of the ability to face the accuser in court.
When it comes to some other civil traditions that are sacrosanct in Europe, the United States needs to face justified criticism. The harsh and overcrowded penal system treats some offenders unfairly; it is a product of populist sentiments influenced by the crime waves of the twentieth century and fueled by the dysfunctional War on Drugs. While Polish prisons may not be much better, some of the ideas implemented elsewhere in Europe seem to make a clear difference. They are difficult to adopt in the States chiefly because they do not fit the folksy “tough on crime” image that many American politicians take pride in.
In the same vein, police brutality, disproportionately faced by the poor and the minorities, is another black mark for individual rights. The death penalty, albeit infrequent and reserved for most heinous crimes, stands on shaky moral grounds – even if it faces steady public support. The indefinite detention and torture of terrorism suspects, with the knowledge and complicity of many other European states, deserves nothing but scorn. Civil forfeiture is a bizarre concept that seems to violate the spirit of the Fourth Amendment by applying unreasonably relaxed standards for certain types of seizures – although in all likelihood, its days are coming to an end.
As usual, the picture is complex and it’s hard to declare the superiority of any single approach to individual liberties. Europe and the United States have much in common, but also differ in very interesting ways.
For the next article in the series, click here.