Free speech is the essential liberty, if you can keep it

Alas, after enjoying a “golden Age of free speech unsurpassed in human history” stretching from the late 1970s to the early 2000s (a period corresponding, not coincidentally, with the greatest expansion of democracy in human history) the world is now almost two decades into what Mchangama calls a “free speech recession.” According to Freedom House, while 41% of countries could boast a free press in 2003, by 2016, that figure had dropped to 31%. And even in places where free speech protections remain strong, such as Western Europe and the United States, worrisome signs abound, from the increasing propensity among individuals to self-censor to the rising support among college students for shouting down invited speakers to the enthusiastic reception a certain former president receives from his devoted followers whenever he threatens to “open up the libel laws.”

Mchangama is not a neutral recorder of this epic history but an active participant in it. The founder of a civil libertarian think tank, he is an advocate for the unfettered right to free expression, what those who profess to have attained a higher form of enlightenment deride as an “absolutist.” Free speech, he argues, has been essential to democracy, individual rights, and general human flourishing throughout time and across cultures. In addition to Mchangama’s historically grounded case that the free speech regime that governs best is the one that governs least, what emerges most strongly from his book is how little the contours of the debate surrounding free speech have changed since the age of antiquity.

For instance, anti-free speech regimes are always and everywhere arbitrary. The prosecutors of the Spanish Inquisition claimed to be acting on behalf of God in their saving of souls, but “oral evidence motivated by personal grievances was perfectly admissible.” It’s a burden of proof that would live centuries later during the rule of the East German Stasi (and within the human resources department at the New York Times).

Today, we are inundated with complaints that social media platforms are enabling people to “abuse” their First Amendment rights by making it easier to disseminate “hate speech” and “misinformation.” As the headline of a 2019 New York Times essay by a New Yorker staff writer declared, “Free Speech Is Killing Us.” (Free speech doesn’t kill people. Asinine arguments by extremely online Brooklynites do.) Mchangama assures us that there is nothing new to such complaints, that they are but the latest incarnation of an “elite panic” that in hindsight always looks like Luddite pearl-clutching. “Every new advancement — from the printing press to the internet — has been opposed by those whose institutional authority is vulnerable to being undermined by sudden changes,” he writes. In his 1516 tract, The Education of a Christian Prince, a benign riff on the genre of the authoritarian how-to guide spawned by Niccolo Machiavelli, Dutch man of letters Desiderius Erasmus concluded with the observation, “In a free state, tongues too should be free.” Less than 10 years later, however, he was bemoaning how the new technology of printing presses “fill the world with pamphlets and books … foolish, ignorant, malignant, libelous, mad, impious and subversive; and such is the flood that even things that might have done good lose all their goodness.” Compare this about-face to that of former President Barack Obama, who rode to office in large part thanks to his campaign’s skillful use of the internet yet by 2020 was claiming that it posed “the single biggest threat to our democracy.”

More than any other theme, it is this relationship between free speech and power, the “ancient but dynamic conflict between the proper spheres of authority and free expression,” that reverberates most loudly throughout Mchangama’s book. Beginning with the ancient Roman elitist distinction between libertas, the liberty to speak granted to free Roman citizens, and licentia, the abuse of that freedom, the ability to determine what constitutes allowable and punishable speech always lies with those in authority, whether they be emperors, kings, and prelates or, in ostensibly more democratic settings, university presidents, congressional chairman, and tech barons. The real conflict over free speech, Mchangama argues, is not between an “absolutist” model and one that is “anti-racist,” “anti-fascist,” or whatever other term the pro-censorship crowd conjures up to describe its attempt at arbitrarily protecting (some) people’s feelings, but rather between “an egalitarian versus elitist conception.”

William Berkeley, governor of colonial Virginia, tidily expressed the attitude of his fellow elites in 1671 when he declared, “But, I thank God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both.” Unfortunately for Berkeley, his prayers went unheeded, as America’s settler society quickly transformed into the most democratic society the world had yet known. A crucial development was the 1735 case of John Peter Zenger, a German immigrant and publisher of the New York Weekly Journal, who was arrested and tried on charges of “seditious libel” for publishing articles that insulted the state’s colonial governor. A tradition of English common law, “seditious libel” was so broadly defined as to include practically any criticism of governmental authority. The truth was no defense.

Even though Zenger had broken the law, the jury found in his favor, and while seditious libel remained on the books, public opinion was so inflamed by the case that the “act of jury nullification all but ended seditious libel prosecutions in colonial courts.” Thanks to the common sense of the common American man, the tyrannical power of the government to arrest and imprison individuals for speaking their minds was effectively negated, a development that was to have enormous consequences for “the creation of a culture of free speech in the New World.”

The culture inspired by the Zenger case was a prerequisite for the most significant development in the history of human freedom, the American Revolution. “What do we mean by the Revolution?” asked John Adams in a letter to his frenemy Thomas Jefferson in 1815. “The War? That was no part of the Revolution; it was only an effect and consequence of it. The Revolution was in the minds of the people, and this was effected, from 1760 to 1775, in the course of fifteen years before a drop of blood was shed at Lexington.” Adams credited no one more for instilling the spirit of revolution “in the minds of the people” than the British-born American pamphleteer Thomas Paine, author of the massively influential Common Sense. Paine followed that up with Rights of Man, an intellectual defense of the French Revolution, and Rights of Man, Part the Second, which targeted hereditary monarchy as “ridiculous.” For these and other heresies against the throne, Paine fled England for France, and during his trial in absentia for sedition, the British attorney general attacked him for riling up “the lower classes of the people,” specifically, “the ignorant, the credulous, and the desperate.”

Elitist fear of the masses remained a persistent theme of arguments against free speech. During the 19th century, rising literacy rates alarmed continental European leaders, who feared that a reading public would prove susceptible to dangerous ideas such as individual rights and democracy. Governments ham-handedly responded to this alarming development with extortionist stamp taxes on newspapers and onerous licensing requirements for publishers. No less a totemic left-wing figure than Karl Marx understood the centrality of a free press to the workers of the world. “The free press is the ubiquitous vigilant eye of a people’s soul, the embodiment of a people’s faith in itself, the eloquent link that connects the individual with the state and the world, the embodied culture that transforms material struggles into intellectual struggles and idealizes their crude material form,” he wrote.

Generations of black leaders similarly realized the importance of free speech in their long campaigns for equality. So dangerous was the written word considered to be that in 1829, the Georgia Legislature imposed the death penalty on David Walker, a free black man, for mailing his antislavery pamphlet, Appeal to the Colored Citizens of the World, across state lines. Free speech, the former slave Frederick Douglass declared, was “the dread of tyrants.” Repeatedly jailed for exercising his First Amendment rights, Dr. Martin Luther King laid out his vision of the promised land the day before his assassination: “Somewhere I read that the greatness of America is the right to protest for right. And so just as I say we aren’t going to let any dogs or water hoses turn us around, we aren’t going to let any injunction turn us around.”

Contrast these attitudes to those expressed in the aftermath of the murder of George Floyd when, “unlike the civil rights movements of the 1950s and ‘60s, many proponents of racial justice saw free speech as a threat to, rather than a precondition for, justice and equality.” Decrying the effect of “disinformation” and “hate speech” on the minds of the great unwashed, today’s liberal elites, Mchangama writes, sound awfully similar to “Soviet apparatchiks who warned against the flood of Western ‘racism,’ ‘fascism,’ and ‘false propaganda.’” Those who claim that “hate speech” inflicts tangible harm and should therefore be proscribed echo the very first Bolshevik decree, which declared “that the bourgeois press is one of the most powerful weapons of the bourgeoisie … no less dangerous than bombs and machine guns.” Attempts to control the flow of information on the internet, ostensibly undertaken to protect the vulnerable, are similarly anti-democratic, “ultimately aimed at restricting the speech and access to information of users, not that of the platforms whose commitment to free expression is quite openly tempered by their commitment to shareholders, advertisers, and other stakeholders.”

A conscientious adherent of his own creed, Mchangama seeks to persuade. Rather than cherry-pick his opponents’ most easily refutable arguments, he addresses their most persuasive: that laws against “hate speech” and other forms of informational pollution act as a bulwark against violence and tyranny. In rebuttal, Mchangama cites the “Weimar fallacy,” so-called owing to the interwar German government’s repeated banning of Nazi newspapers and rallies, all to no avail. On the contrary, the Nazis gained popularity by portraying themselves as heroic victims of censorship and, once gaining power, used some of the very same laws deployed against them to murder German democracy in its cradle. (In passing, Mchangama notes that, alongside Catholics, it was the working classes who proved “most resistant to Nazi ideology” among the German population. Score another point for the homespun wisdom of the common man.)

So obsessed have we become with the supposed “costs” of free speech that we routinely ignore its abundant benefits, which include, but are hardly limited to, “the toppling of absolutist rulers to the cross-fertilization of knowledge across cultures and the defeat of institutional racism and discrimination.” Something is not rotten in the state of Denmark.

James Kirchick is author of The End of Europe: Dictators, Demagogues, and the Coming Dark Age. His next book, Secret City: The Hidden History of Gay Washington, is forthcoming from Henry Holt.