The Future of Free Speech

Transcript

[Sandro Galea]
Welcome to Ideas Matter, a podcast hosted by WashU. I am Sandro Galea. Today we’re going to have a conversation about something without which conversation as we know it would not exist, free speech. From the writings of John Milton to the First Amendment of the U.S. Constitution, free speech has long been considered an essential feature of human liberty. But free speech has never come easy. It calls on us to make space, not just for speech we agree with, but for a speech we do not, perhaps even speech we abhor.

The digital age has created new challenges for speech, as the spread of disinformation and extremism raises questions about when we should accept restrictions on speech and how they should be imposed. I look forward to discussing free speech, its history and role in the present moment with today’s guest. Jacob Mchangama is a lawyer, human rights advocate, and public commentator.

He is the founder and executive director of the Future of Free Speech, a nonpartisan think tank located at Vanderbilt University. He is a research professor at Vanderbilt and a senior fellow at the Foundation for Individual Rights and Expression, FIRE. His latest book with Jeff Kosseff is The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom. I’m delighted to have him with us today. Jacob, welcome.

[Jacob Mchangama]
Thanks, Sandro.

[Sandro Galea]
So let me start by asking a bit about you. How did you come to be doing the work you’re doing?

[Jacob Mchangama]
Yeah, it’s not logical that free speech would be the the main obsession of mine, given that I was born and raised in in Denmark, which is not exactly famous for being authoritarian. but around twenty years ago, there was a Danish newspaper that published cartoons of the Muslim Prophet Muhammad that led to a a global firestorm. And so I went from being someone who took free speech for granted, never really thought about it, to someone who really had to consider the the value of this which was under attack with extremists wanting to to kill editors and cartoonists and authoritarian states demanding one of the most liberal secular countries in the world should enforce a blasphemy ban essentially against independent newspapers.

[Sandro Galea]
Talk to us about where we are now, twenty years later, after you’ve been involved in the story. What’s the global state of free speech today? What are the central cultural, political, technological trends that are shaping speech in the moment?

[Jacob Mchangama]
Yeah, so that’s a that’s a huge question. I think the most pithy way to say it is that we’re living through a global free speech recession that has been ongoing for close to two decades. From the optimistic days of the of the 1990s and early 2000 when it seemed that free speech and democracy would crash ashore victoriously everywhere in the world, to now where essentially almost all of the the progress in terms of democracy and freedom have been reversed around the world, where authoritarian states are resurgent, democracies are on the defense. And it’s quite clear that that free speech is a very important indicator of that. So in other words, countries that are moving towards authoritarianism, the most significant indicator is less free speech. And actually the same with the minority of countries that are moving towards democracy, they strengthened press freedom for instance. So in that sense that’s really why in the book we call it democracy’s most essential freedom. That’s really what I strongly believe. Unfortunately, that most essential freedom is in global decline, including in democracies.

[Sandro Galea]
Are there historical precedents for such a decline?

[Jacob Mchangama]
Yeah, first of all we should acknowledge that free speech has been a part of human history for a very short time. I mean there have been early experiments, the Athenian democracy 2,500 years ago being sort of the ground zero, but one that didn’t last very long. And then there have been pockets of experimentation and for free speech to become really a constitutional individual right only in the late 18th century and really only becoming the default ideal in democracies in the second half of the 19th century, in many places in Europe, for instance. But there has certainly been many instances of free speech being won and then lost again. You could say that the Enlightenment is a good example. The second half of the eighteenth century, free speech becomes a very fashionable ideal. Even absolutist rulers implement it in careful doses at least.
But then the French Revolution leads to radicalism, it leads to the fall of traditional values, it leads to revolution, and free speech becomes associated with the the destruction of the institutions that are necessary for a society to function. And therefore free speech is very much put under pressure by governments, by churches and so on. And it took as I said until the second half of the 19th century for free speech to really recover in many places.

American history has seen free speech wax and wane. There have been outbreaks of serious persecution of political, racial, religious minorities, even during the lifetime of the First Amendment. What has typically happened is that once those periods have subsided, the panics have subsided, free speech has been strengthened on the basis of that. The countries come together and said, you know, we need to learn from that, and the right way forward is to strengthen free speech. Now that’s not a natural law that that says that free speech will always return, reinvigorated, but that is at least a hopeful historical trend.

[Sandro Galea]
So staying with history for a second, when you look at classic liberal defenses of free speech, like from people like Mill and Voltaire, what aspects remain relevant and what if anything feels outdated today?

[Jacob Mchangama]
Well I mean Mill and Voltaire are two very different beasts. Voltaire has in many ways a very elitist conception of free speech. He thinks free speech is very important but mostly for a well educated elite. He’s not concerned with democracy. He’s perfectly fine with so called enlightened absolutists, has very friendly relations with Frederick the Great and others, and of course his main gripe is with the Catholic church, with the way that religious orthodoxy limits enlightenment philosophs like himself.

J. Sher Mill has a much more sophisticated, well developed free speech theory. And I think essentially most of what Mill writes in On Liberty in part two, chapter two of On Liberty, is still very relevant today. One of the interesting things in On Liberty is that it’s not so much about government restrictions on free speech. By the time it’s written in the second half of the 19th century, Britain has done away with lots of the censorship apparatus that had kept especially the lower classes down. And there was a relatively free and open debate. So he’s more concerned with the way that the tyranny of the majority can silence dissent through cultural norms and that I think speaks to relevant developments in the United States today, debates about cancel culture, campus free speech, and so on. That’s not so much about government censorship, but about how, for instance, a private university should handle controversies, whether you should allow controversial speakers, whether they should police certain types of expression that might be deemed offensive to student groups or faculty…

[Sandro Galea]
So my question and your answer is grounded in the Western tradition. Talk us through contributions to the history of free speech from non-Western traditions that are beyond sort of the enlightenment concept of free speech.

[Jacob Mchangama]
Yeah. So you could look at the medieval Islamic world in and around the Abbasid Caliphate, where you have some of the earliest and most radical, what we today might call free thinkers, people who rejected prophecy or were were critical of prophecy, who insisted on the right to think outside of religious orthodoxy. You had one of the most fertile environments for philosophy, and it was not limited to the translation of Greek philosophy like Aristotle, but built on top of that. Now it was not free speech in the way that we’d recognize it today. It was not that everyone had the right to say everything, but there was a significant amount of free thought which I think is important to include in the history of free speech.

[Sandro Galea]
Fast forward to the moment, and the internet and social media, digital platforms, how do you feel about the claim that the internet fundamentally changes the calculus around free speech?

[Jacob Mchangama]
I don’t think it’s a very persuasive argument. Now obviously it has huge implications for how we communicate, who gets to communicate. It has implications for institutional, cultural, political authority, but that has always been the case when the public sphere is expanded, from the printing press, to radio, and so on. In that sense history certainly rhymes. But I think there’s always this tendency when you’re living through great changes, great disruptions, you always feel that this is something completely unique. And this time it’s not the same as before, and therefore we need to do something about it. But I would still say that the fact that billions of people have access to the internet and can therefore share information, access information, makes a very different public sphere from the one that was mediated by traditional gatekeepers. For many that’s something to be lamented because the claim is we don’t have a shared reality and that makes it difficult to have social cohesion.

But the other side of that is that before, we had an imaginary shared reality, right, we had traditional gatekeepers who decided what was relevant and what was not relevant, what type of information should be shared and not. And they had particular perspectives and of course could not share all relevant information, which means that what might seem to be shared facts and shared truth just did not reflect reality, at least not reality in all its messiness. Reality is messy. And I think we’re better off having you know being confronted with the messiness of reality than having you know a Walter Cronkite summarize a little selective slice of reality for us every day and then adopt that as gospel.

[Sandro Galea]
So let’s go from messiness to hypocrisy. I like what you’ve written about free speech hypocrisy, where those who claim to be defenders of speech make exceptions when their own side is threatened. Talk us through the most common forms, how you see this hypocrisy play out today across the political spectrum.

[Jacob Mchangama]
Yeah, so it’s a concept that I call Milton’s curse in my previous book called Free Speech: A History from Socrates to Social Media. And that’s because John Milton wrote his famous book, the Areopagitica, in the 1640s, and that’s a very eloquent and famous treatise in favor of press freedom and against prepublication censorship. But for John Milton, press freedom did not apply to Catholics. It did not apply to the most rowdy Protestant sects. It did not apply to blasphemy and so on. And in fact John Milton himself ended up serving as a censor under Cromwell.

So this is something that we see again and again throughout the history of free speech, that many of its greatest champions have these red lines, including Voltaire, but also someone like John Adams was the president under the Sedition Act only seven years after the adoption of the First Amendment and who was fine with people being sent to to prison for calling him names. And unfortunately human nature has not evolved from Milton’s curse. It’s something that I think is likely to afflict all of us. And today it’s an interesting moment in America. So we had a period where over the past decade where and I’m generalizing here, free speech was by many on the left seen as right-coded, and people on the right saw the left hadn’t abandoned free speech principles in favor of wanting to clamp down on disinformation and hate speech and so on.

Then you have the 2024 election. Trump comes into power on his first day of office, he signs an executive order claiming to restore free speech and the First Amendment. But in just about all his actions, he has done the opposite. He has restricted free speech, gone after the press and media, gone after his political opponents. And a lot of the people on the right who five minutes ago were in favor of free speech have no problem with that. They come up with excuses for why that is okay. And then people who are on the left suddenly have rediscovered the value of free speech, including the First Amendment. Some of the most very prominent First Amendment scholars have accused the First Amendment of essentially being weaponized against minorities and being a shield for white supremacy. But many on the left have found out actually the First Amendment is a very important shield against when the government come comes after you. So that’s a good example of how positions change and how we’re likely to appreciate free speech mostly in line with our underlying ideological preferences, which ultimately undermines free speech as a concept.

[Sandro Galea]
Let me pick up on the red line idea that you just put in there in your last paragraph. Talk us through how you think about harm in the context of the free speech debate. There’s been a lot of conversation about harm being psychological, social, and political, not just physical. So where do you draw the line between protected speech and actionable harm?

[Jacob Mchangama]
Yeah so first of all, I certainly acknowledge that free speech can cause harms, but I don’t think it’s all kinds of harms that the government should try and and shield you against. and I also think that when it comes to speech the benefits outweigh the harms.
And also the harms can be very subjective, right? There are people who will feel a huge psychological toll from being called insults, for instance. There are others who have a more stoic mindset and who will insist that, you know, the fact that that someone calls you a bad name or insults you says nothing about who you really are, you know, it’s up to you how to react. Who should who should decide the harm principle? Is it Marcus Aurelius, the stoic philosopher king? Or is it someone who insists that insults carry psychological harms that can be crippling.

I come down on the side of Marcus Aurelius in this case, not because I don’t acknowledge that words can hurt. But I think where I would draw the draw the line is when it, essentially many free speech philosophers have tried to distinguish between words and acts. It can sometimes be an artificial distinction, but I think it makes conceptually sense, especially when you try to operationalize it in a legal setting. So for instance, the First Amendment says that you can’t, or the Supreme Court has interpreted the First Amendment so that you can’t, punish statements unless they constitute incitement to imminent lawless action that is also likely to produce such outcomes. In other words, you can say very hateful things, but unless they are, you know, come so close to constituting actual, for instance, incitement to violence, they are not punishable. And I think there’s a very good reason for that.

Even though many of these cases have protected quite unsavory characters, anti Semites, white supremacists and others, they’ve created a principle that a lot of other groups have been able to rely on, for instance, the Civil Rights Movement. I think it’s very difficult to imagine many of the triumphs of the Civil Rights Movement in the public sphere without the First Amendment having been extended to protect them. And that is something that many of the leading figures of the Civil Rights Movement, Thurgood Marshall, John Lewis, and others, were very, very conscious about.

[Sandro Galea]
Let me build on that a little bit. So, you know, you’ve maken a case, and you made it in your writing, you’re making it now, about defending speech and when it’s even to protect offensive or hateful expression. What do you see as the most persuasive argument for why these edge cases matter, why offensive speech should be protected?

[Jacob Mchangama]
So let me give a very concrete example. So in 1949, there’s a defrocked Catholic priest who is giving a talk, a lecture in Chicago, and he’s a very anti-Semit racist, and he gives these very inflammatory remarks. And there’s a lot of counter protesters who are extremely upset about the fact that he’s speaking in Chicago.

They break into the auditorium and they cause a ruckus with violence and so on. And this speaker is fined for essentially breach of the peace even though, you know, it was the protesters who attacked him. He didn’t, you know, his words might have been offensive and provocative, but he didn’t throw any punches. And that case goes to the Supreme Court. The Supreme Court’s majority says, no, you can’t punish someone, you can’t essentially have a heckless veto. One Supreme Court justice wrote a a stinging dissenting opinion, Robert H. Jackson, who had also been the leading U.S. prosecutor in the Nuremberg trial. So he had seen the effects of Nazism and prosecuted Nazi war criminals. And he said that you can’t have liberty without a measure of order as well. And he warned against the constitution becoming a suicide pact if you allowed such statements as this priest. But he was in the minority.

And then fast forward to 1963, you have a hundred and eighty, hundred and ninety African American students who were protesting outside the Capitol in South Carolina against Jim Crow legislation. And police told them to disperse because they said that their actions led to a breach of peace that might be white citizens who were so offended that they would react violently. And these students refuse, they’re arrested, they bring their case to the Supreme Court, and the Supreme Court points to the first case, the Terminiello case from 1949 and says, we’ve already established that you can’t prohibit speech and protest just because someone might feel offended by it. So in other words, a case that established the principle that an odious white supremacist, anti-Semitic speaker has a right to speak did not result in a suicide pact. In fact, it provided concrete constitutional protection of a persecuted minority.

There are several of such cases in American history and it illustrates what the great abolitionist Frederick Douglass said. He said that the right of speech is a very precious one, especially to the oppressed. And that’s a very different logic than what a lot of people who are very concerned about racism in America today argues. They argue that speech is likely to entrench racism and the oppression of minorities.

[Sandro Galea]
Let me move to universities and institutions that platform, because I struggle with this. So I largely agree with your last answer. I think it’s a really thoughtful way of dealing with free speech. But what’s the responsibility of the institution to platform? It’s one thing to say, we as a society should allow the offensive, hateful speech to happen. But let’s focus on universities perhaps. Would universities have a responsibility to give that speech space? How does the university think about what it allows within its walls and what it doesn’t?

[Jacob Mchangama]
Obviously universities are a bit different from the general public. Universities have a specific mission, which means that in a classroom there will be other limitations on speech than out on the streets. For instance, if Vanderbilt wanted me to teach a course on free speech and I show up wanting to talk about biology, Vanderbilt would be right in saying, you know, you can’t do that, Jacob. If you don’t want to teach the course that you’re assigned, then you have to find somewhere else to teach and work. That’s not a restriction of my free speech. But when it comes to offensive statements that are relevant to the cause being taught, for instance, should you be allowed to use racially charged words in your teaching, I think absolutely. If you read Uncle Tom’s Cabin, or Tom Sawyer, you know, should you blot out the words? Should you try and rewrite history? I think you’re doing everyone a disservice.

If you’re a constitutional lawyer, you want to discuss First Amendment cases. You have to discuss the word tthat were being used, the type of words that were the subject of these cases. Then there are students who invite speakers to come to campus. Again I think that students should have the right to invite speakers that other students might find extremely offensive or racist. First of all, you don’t have an obligation to attend these kinds of things. And the university, if it has a policy of institutional neutrality, doesn’t have to take a position on this or that speaker. It just is a uh, the university is a place which has a commitment to the exchange of different ideas. And if a student group wants to invite someone who is very pro-Israeli, and another group wants to invite someone who’s very pro-Palestinian, then that’s part of of the university, why the university’s there. And you can have a discussion about these things, but the right response of students who are offended by this or the other speaker is not to try to prevent it by disrupting or heckling debate, and it’s not the role of the university to side with one student group or the other to to say, yeah, we’re going to cancel this because we don’t like the viewpoints of a particular speaker.

[Sandro Galea]
Let me shift from universities to social media platforms. So where do you fall on the debate? Are social media platforms analogous to publishers with editorial discretion, or are they quasi-public fora with special obligations to minimize restrictions on speech?

[Jacob Mchangama]
I don’t think they’re publishers. I think it would be very difficult, you know, the New York Times publishes an op-ed a day. So that’s 365 op-eds out of however many submissions, maybe they receive several thousand submissions every day. And they think carefully about the submissions. They also have editors who decide what stories they want to cover, they edit those stories, and so on. That’s impossible to do for a social media platform which is based on user-generated speech, right? So the idea that you want to, on the one hand have a a public sphere where everyone is allowed to post their their ideas, share information, and then at the same time hold intermediaries liable for speech is impossible to imagine. I think that the incentive would overwhelmingly be then to try and restrict speech if you said that social media platforms are akin to publishers. But that does not mean that social media platforms can’t moderate. That’s actually one of the reasons why Section 230, which protects social media companies from liability for user comments, was one of the reasons why I say we want them also to be able to, not only do we want to further online free speech, but we also want to make sure that these intermediaries can develop their own approaches to what we today call content moderation.

So you can have different platforms with different moderation policies, which is not necessarily a free speech problem, especially not if we had a more decentralized social media ecosystem. That’s one of the arguments we argue for in the book, is that rather than the government stepping in, and rather than having these huge behemoths, then it would be better to have more decentralized ecosystem. It could also be an ecosystem where the platforms allowed more user empowerment. So to have users have a bigger say over what types of speech they want to be confronted with rather than having big centralized platforms call the shots.

[Sandro Galea]
So if you were designing a modern free speech constitution for the digital age, what principles from history would you preserve and are there new principles that we’d need to add?

[Jacob Mchangama]
I don’t think there’s a one size fits all. It would be one that was vigorously protected from government control, but I think it would be one that was optimized for decentralization, interoperability, user empowerment, and that allowed more creativity and innovation than we see now. But that’s easier said than done.

But there are certainly interesting alternatives out there that are competing to try and make more compelling social media platforms, for instance, that don’t optimize for engagement but more for constructive disagreement or even agreement on things. And I think we’re still very early in the digital age, right? Think about how long it took from the printing press until you had something remotely resembling professional journalism with ethics and standards and so on, right? So in that sense, these are very, very early days and it will take time for us to adjust and develop institutional ways of doing things, norms and so on, that might create a less fragmented online ecosystem than the one that we are experiencing today.

[Sandro Galea]
Last question. So looking ahead, are you ultimately optimistic or pessimistic about the future of free speech worldwide? What’s giving you hope, if any, in the moment?

[Jacob Mchangama]
Yeah, in the short term I’m not so optimistic. The trend is going the wrong direction. But I think you know, we recently saw Hungary, we saw that the opposition dislodged 16 years of illiberal rule there. And that was not really supposed to be possible because Viktor Orban essentially controlled the vast majority of media. He had fiddled around with the electoral rules in ways that essentially protected him and his party. But he didn’t control the internet, and the opposition and independent media were able to use the internet to write about corruption scandals and also able to mobilize online. I think that shows that there’s still a real strong case for free speech in our world. And there’s a reason why Iran would shut down the internet. There’s a reason why Russia and China are obsessed about controlling the online spheres, because they know that you have to control those outlets if you run an authoritarian regime. And the flip side of that is of course understanding that these tools, for all the disruption that they can bring, ultimately are necessary for a vibrant democracy in the digital age.

[Sandro Galea]
I’m Sandro Galea. I have been talking with Jacob Mchangama about free speech then and now. Jacob, thank you.

[Jacob Mchangama]
Thank you so much.

[Sandro Galea]
Thank you to everybody who joined us for this Ideas Matter. I look forward to continuing the conversation.