In Mahanoy, the Supreme Court struck a blow for free speech and bolstered the rights of parents.
It is a striking feature of American life in the first quarter of the 21st century that we have somehow created a culture in which everyone feels aggrieved. This is especially true when it comes to free speech. Both conservatives and progressives believe their opponents are out to silence them—not just beat them in debates and prevail against them in elections, but intimidate them, put them on mute permanently, eliminate any possibility of resistance. Many on each side see the other as not simply wrong, but ill-motivated and dangerous, an existential threat to be defeated before it is too late.
This state of affairs is more the norm in American history than we care to admit. Perhaps because we see ourselves in providential terms—“the last best hope of earth,” as Lincoln said—Americans always have been sensitive to threats our democracy faces and often have worried about enemies within spreading “disinformation.” Eras of Good Feeling occur relatively rarely. Even so, the level of recrimination just now seems quite high, and many Americans apparently believe we must silence our opponents before they succeed in silencing us.
In Free Speech: A History from Socrates to Social Media, Jacob Mchangama maintains that a renewed commitment to free expression can help us through these perfervid times. Mchangama, a lawyer and the founder of Justitia, a human-rights organization in Denmark, has written a programmatic history that “connect[s] past speech controversies with the most pressing contemporary ones.” Today’s debates about free expression recapitulate those of long ago, he believes, and just as our ancestors did, we must defend the right to speak against those who would take it away.
To write a comprehensive history like this one is an ambitious undertaking, and Free Speech is a mixed success. Mchangama writes engagingly and has done his research. The chapters on the Internet and social media are especially good. But even at 500 pages, a history that spans thousands of years and many civilizations is bound to be a bit superficial at times. Moreover, as he himself recognizes, tolerance for others’ speech depends as much on culture as it does on law—and in today’s polarized, distrustful America, we are less and less likely to give our opponents the benefit of the doubt and let them have their say even if the law permits it.
Mchangama argues that the conflict between “authority and free expression” is perennial in every age and culture—ancient Greece and Rome, Medieval Europe, Classical Islam, Confucian China, Mughal India and, of course, the modern and post-modern West—and always has the same two sides: entrenched elites who want to maintain control of society and the scrappy upstarts who want to liberate it. He believes, however, that new communications technologies, which allow for chokeholds on the spread of information that past tyrants could only dream of, make this a particularly dangerous moment. “Twitter and YouTube . . . removed record levels of content in 2019 and 2020,” he notes. “No government in history has ever been able to exert such extensive control over what is being said, read, and shared by so many people across the world and in real time.” That is why we must be especially vigilant now, when many elites in government and media want to curtail free expression. “For all its flaws,” he writes, “a world with less free speech [would] also be less tolerant, democratic, enlightened, innovative, free, and fun.”
Although most of the history he recounts is familiar—for example, many have written about the combined effect of the Protestant Reformation and the printing press in weakening elite authority in the early modern period—he does offer interesting details. It is amusing to learn, for instance, that Voltaire, that great defender of free expression, nonetheless “tried to game the system of French censorship in order to advance his own writings and suppress those of his foes.” Voltaire’s contemporary, Diderot, likewise did not scruple at asking the authorities to ban works that criticized the Encyclopedia.
Mchangama’s discussion of the first recorded claim of academic freedom, concerning the teaching of Aristotle at the University of Paris in 1206, is fascinating, as is his discussion of a similar controversy at Columbia University seven hundred years later, when two professors lost their jobs for opposing World War I. The New York Times approved the dismissal, declaring, “‘if colleges and universities are not to become breeding grounds of radicalism and socialism, it must be recognized that academic freedom has two sides, that freedom to teach is correlative to the freedom to dispense with poisonous teachings.’” No doubt, the Times would say much the same today, though the politics of its targets likely would differ.
Mchangama’s description of what he calls “the Weimar fallacy,” a phrase he borrows from legal philosopher Eric Heinze, is thought-provoking. Advocates of limiting hate speech sometimes maintain that the Weimar Republic could have stopped the rise of Nazism by silencing Adolph Hitler in the 1920s, thereby avoiding the Holocaust. In response, Mchangama points out that the Weimar Republic did attempt to restrict Nazi speech, but that its efforts backfired, increasing sympathy for Hitler and his crew and “turning monsters into martyrs.” And the Nazis later used the Weimar-era restrictions to “strangle the very democracy the laws were supposed to protect.” Far from stopping the eventual carnage, Mchangama argues, restrictions on speech may have contributed to it.
Nonetheless, Free Speech is occasionally facile. For example, Mchangama’s treatment of the Abbasid Caliphate seems rushed, and his assertion that Classical Islam was unique among monotheistic religions in its openness to heterodoxy, forced. He focuses on two skeptical thinkers in ninth-century Islam, the Persians al-Rawandi and al-Razi, and notes they managed somehow to avoid execution for their writings. But, as he recognizes, these are marginal figures in Islamic thought (though al-Razi achieved great fame as a physician). None of al-Rawandi’s writings even survive. Their examples do not prove too much.
Moreover, not every episode in the history of free speech easily fits Mchangama’s elite-vs-egalitarian template. For example, he argues that Athens executed Socrates because he insisted on speaking out in a way that “rubbed many powerful Athenians the wrong way” and that Socrates was thus “the first recorded martyr for free speech.” This is true, in a sense, but also a bit misleading. As Mchangama notes, the reasons for Socrates’ downfall were complicated, and “[w]e may never be able to determine authoritatively why [he] was executed.” Besides, Socrates was no egalitarian. As Mchangama writes, Socrates was suspected of supporting the oligarchy, imposed by Sparta, that Athens recently had overthrown. Even more implausibly, Mchangama suggests that Jesus Christ was killed because he ran afoul of Jewish blasphemy and Roman sedition laws. That interpretation would surprise Christians, very few of whom, I think, ever have believed that Jesus died for free speech.
Mchangama’s free-speech absolutism occasionally gets the better of him in other ways, too. He praises “what can be achieved when reason is unshackled from dogma and intellectual curiosity is allowed to roam free, however unsettling to established belief and authority,” and his heroes down the centuries are the gadflies and scoffers in every culture who have questioned tradition. Fair enough. But tradition isn’t always bad, and restrictions on speech may have justifications other than obscurantism and elitism. For example, he criticizes the Russian government for prosecuting members of the feminist pop band, Pussy Riot, for “staging a protest against Putin in an Orthodox cathedral” in Moscow in 2012. That’s one way to describe what the band did. Another is to say that the band trespassed on a house of worship and interfered with the religious exercise of believers, not all of whom admired Putin. One can support free speech, and condemn Putin, and still think the band members should have been prosecuted for what they did.
To his credit, towards the end of Free Speech, Mchangama acknowledges that things may not be so simple. Disinformation and online hate speech have costs, he concedes (though he believes the costs are overstated), and he writes that “[a] robust commitment to free speech should be accompanied with a zero-tolerance policy toward organized threats, intimidation, and violence by groups seeking to establish parallel systems of authority.” Moreover, he identifies the real problem for defenders of free speech in America today. It is not law, or even disagreement on high-level ideals, but our polarized culture. “As an abstract principle,” he writes, “American faith in free speech remains strong. But the unity collapses along unforgiving tribalist and identitarian lines once each side’s sacred taboos are violated by the other.”
In other words, the reason why negotiating conflicts over free speech is so difficult is that Americans increasingly do not see ourselves as part of a common project and do not trust one another. In this polarized climate, disagreement comes across as threat and insult, and allowing our opponents to have their say seems less and less appealing. Consider, for example, the recent controversy over Elon Musk’s purchase of Twitter. Conservatives rejoiced. They remembered how Twitter banned discussion of Hunter Biden’s laptop during the election campaign of 2020—a story later shown to be true—and banned a popular conservative satirical site, The Babylon Bee, in 2021, and hoped Musk would treat them more fairly. The reaction from progressives was the mirror image of this. They dismissed Musk’s praise for free speech and predicted that Twitter would now silence and bully them, particularly women and minorities.
Or consider the conflict over CRT in public schools. Conservatives argue that CRT indoctrinates impressionable schoolkids in a false version of American history, thereby threatening our social fabric and our democratic institutions. They want teachers to stop discussing it. By contrast, progressives say that conservatives want to suppress the truth and present a phony, sanitized version of American history that does real harm to minority communities and itself threatens democracy. Conservatives are the ones who need to be silenced. Compromise, in such a context, seems unlikely.
It would be unfair to criticize Mchangama for failing to suggest a solution to our deep social divides. No one else has a solution, either. And he is right that, for a start, “[d]eveloping a more detached attitude to the constant background noise of social media rather than treating each ‘problematic’ tweet or piece of content as a potential threat to democracy” would improve the situation. Mchangama is right, too, that free expression has, on balance, benefitted humanity greatly. But until Americans learn to trust one another more, his pleas for a renewed commitment to tolerating speech that offends us will likely fall on deaf ears.