Free Speech, A History

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0:00:07.3 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is Jacob Mchangama, a Danish lawyer, human-​rights advocate and social commentator. He is the founder and director of Justitia, a Copenhagen-​based think tank, focusing on human rights, freedom of speech and the rule of law. His new book is Free Speech: A History from Socrates to Social Media. Welcome to Free Thoughts, Jacob.

0:00:28.0 Jacob Mchangama.: Thank you so much for having me. I’ve been looking forward to it.

0:00:31.4 Trevor Burrus: How new is the concept of Free Speech?

0:00:35.1 Jacob Mchangama.: [chuckle] That’s a good question. I find its origins stretching all the way back to the Athenian democracy of ancient times, so around 2500 years of the Athenians is where… Of course, there might well have been other civilizations or cultures prior to the Athenians, but that’s the historical… By the historical records that we’ve got, I find that the Athenian democracy is the earliest policy where free speech is both a political and a civic principle, so you basically have two conceptions of free speech, one of them being isegoria or equality of speech, which means that all free born male citizens have a direct voice in debating and voting on laws in the assembly in Athens, and then you have the concept of parrhesia, which is broader civic, cultural trade of Athenian democracy, uninhibited speech it means, which allowed the Athenians to be bold and daring in social dissent, and which again was premised on a commitment to tolerance of social dissent, of course, with certain limits as Socrates would find out at some point.

0:01:47.8 Trevor Burrus: You said men, this did not apply to women, I assume?

0:01:51.3 Jacob Mchangama.: Certainly not political speech, isegoria, that was only free-​born male citizens, and so that would only be Athenian free-​born men, not slaves or foreigners. Parrhesia would also apply to foreigners, but women were mostly hidden away [chuckle] in Athenian society, so certainly not treated as equals. You do see there are some hints at protofeminism, but certainly I think it would be fair to say that it was exercised by men, and we have to get pretty far into the history of free speech before women have anything close to equality of speech with men, unfortunately.

0:02:41.7 Trevor Burrus: So what did happen? Socrates, if there was at least some amount of fairly robust principled belief in free speech, we know what happened to him and evidently it didn’t go all the way.

0:02:54.4 Jacob Mchangama.: I think the important thing is to remember that he was sort of 70 or so before he was tried and executed. And so for decades, he had actually been the most prolific practitioner of parrhesia. In Athens, he had accosted to the good citizens of Athens and in the agoras of the marketplace where he would roast people who didn’t manage to escape him in these humiliating Q and As in his Socratic method. So it’s not as if there had never been tolerance for Socrates’s use of parrhesia. I think we have to look at some specific backgrounds, namely that the Athenian democracy had been overthrown twice by oligarchs, and that Socrates had had close contacts with some of the leading figures involved in these coups.

0:04:00.9 Jacob Mchangama.: And so the Athenians had become much more jealous about their democracy. And it’s also Socrates was not an enthusiastic believer in Athenian democracy. Perhaps not even in free speech. He, I think, was more along the lines that it should be an elite that wielded power. So in that sense, he could be seen as someone who was advocating seditious ideas. Also, he had some heterodox religious views, and the Athenian democracy was not a secular state in the way that we see it. So it might have been a case of the Athenians saying, “Well, not only did this person have close contacts with the people who overthrew our democracy and led to bloody revolutions and purges of Athenian citizens, he also angered the gods that might have been responsible for all kinds of ill fortunes.”

0:05:10.7 Jacob Mchangama.: And so that might have been the reason why he was tried and executed. Now he could have escaped execution, it’s a fact that the jury court, a higher number of jurors voted for his execution than for his guilt, and that’s because he didn’t exactly endear himself to the jury in his defense. But he probably could have escaped with banishment or something like that. But to cut a long story short, I think it’s important to say that Socrates is in many ways the exception to the rule. So it was not customary that people would be treated in that manner. We’re not exactly certain how many people had been subjected to trials for speech, but there was no inquisition, there was no censorship board or the like that we would see later on in European history.

0:06:12.1 Trevor Burrus: Well, we see that, that’s a recurring theme, of course, in your book, that speech as a threat to power, and that seems to be part of the Socrates story, and people who believe in free speech up until it might threaten their power is a consistent recurring theme. I’ve always known that, but reading your book, I’m like, “This is a stunningly common thing to happen.”

0:06:35.8 Jacob Mchangama.: Yeah, it really is, it’s probably has to do with our psychological makeup as a species. [chuckle] And the way that we sort of react to threats, real and perceived, it’s much easier to the lord a principle of toleration and free speech when you’re in power or when you don’t feel threatened, but when you suddenly feel you’re living in uncertain times and you believe that people who have extreme ideas that run counter to your most cherished ideals are in ascendancy, you become much more inclined to say that they should be censored, or restricted, or punished, or banned. And, so unfortunately, I think that’s sort of hardwired into to the human brain, and we see it again and again, as you mentioned. Even some of the great founders and framers in American history had their limits on free speech. So, this is probably something that… One of the reasons why the history of free speech tends to sort of see-​saw a lot, and of both, because we are good, very good at convincing ourselves, even people who believe in free speech, that on this particular area where we feel very strongly about something, free speech should have an asterisk which says “Not for this particular type of speech,” but that is completely different from all the other attempts at limiting free speech, which are authoritarian.

0:08:18.2 Trevor Burrus: Are you able to identify someone who maybe gives a earliest principle defense of freedom of speech? I mean, I guess that could be different. There’s obviously different arguments for free speech, some of them are just the limits of state power, some of them are the need to work out the marketplace of ideas and work out these things. Is there someone who early on articulates this as a principle, as even as opposed to something that’s like efficacious, as opposed to someone saying, “I wanna speak,” therefore, free speech, but saying it is important to have free speech as a principle?

0:08:52.9 Jacob Mchangama.: I think we can point to someone called Dirck Coornhert. He was a Dutch sort of heterodox theologian, who wrote at the time when the Dutch Republic was founded. And he was a… He wrote this symposium on freedom of conscience. So it’s this… These fictional dialogues between great theologians and philosophers, and so he has an alter ego there that argues with sort of… That is really him himself, sort of his… A ventriloquist for himself, that argues that not only should heresy be killed with, not with the sword, but with words. But also that… He says something along the lines that it is always been against an attempt to destroy liberty by forbidding good books to squelch the truth.

0:10:01.3 Jacob Mchangama.: So that’s a very early defense of press freedom, much earlier than John Milton’s Areopagitica, which in any event was not a very principled defense. Then you have, in the 1640s, you have the Levellers in England who, I think, have a very, very radical defense of free speech that chimes with their belief in sort of universal freedom of conscience and universal male suffrage at a very, very early time. Unfortunately, they are sort of quickly snuffed out by the forces of Cromwell and almost forgotten, but you can sort of see an echo of their thoughts in the ideas of Madison later on, even though I don’t think the founders and framers specifically acknowledge the Levellers, but some of the ideas are strikingly similar about the value of free speech and freedom of conscience.

0:11:07.3 Trevor Burrus: It’s a pretty big gap between, say, Athenian democracy in 1500, 1600, it’s a pretty big gap of… And one reason that we might think that gap exist is because the church had a fair amount of significant power over what you could say and do, and it wasn’t even so much political as it was religious, although those were intertwined to challenge heresy. And that’s one question you kind of defend the “dark ages,” which is, I think, correct. But in a religious context, if it is believed that the absolute truth is held and that heresy is very dangerous, squelching down on speech kind of makes sense, which is, of course, why the church did it.

0:11:52.5 Jacob Mchangama.: Yeah, absolutely. I think it’s very difficult for the modern mind, the 21st century mind, to understand how important religion was to people at that time. So in many ways, I think, maybe this is being too provocative, but even people who are religious today are probably religious in a very different way than people were at the time, where they absolutely believe that God could interfere, and was likely to interfere and punish humans, for instance, if they allowed heretics to pollute the community of believers, which would not only sort of… Was one thing to allow your own soul and eternal life to forgo that, but if you polluted society as such, you risked the eternal life, and the salvation of souls of everyone else, and ultimately divine intervention through the wrath of God who might punish Christendom with all kinds of dissents and seen in that light. If you have…

0:13:10.4 Jacob Mchangama.: If you believe that you have the Truth, capital T truth, then trying to rule out heresy and establish an entrenched orthodoxy, you might see yourself as a force for good combating the evils of heretics who try to throw into danger the eternal life and souls of innocent Christians. So what you’re doing is something good and benign. And that is why someone as powerful and intellectual as Thomas Aquinas, for instance, defends the death penalty for obstinate heretics and also for blasphemy. And he comes up with these really elaborate philosophical, theological defenses of why it is just to execute obstinate heretics who persist with heretical beliefs even after having been warned and initially punished.

0:14:19.1 Trevor Burrus: So do we see any heroes in that era? I mean, Aquinas isn’t a hero. Who is a… Yeah, who is a liberal?

0:14:25.6 Jacob Mchangama.: The chapter on the medieval period era is called the Not-​so Dark Age. So we have sort of a… For instance, if we moved to the Abbasid Caliphate in the Islamic world and sort of the adjacent territories, it becomes a very fertile ground for philosophy, and science, medicine, is why we have some incredible polymaths whose scientific and philosophical output is absolutely mind-​boggling. And you also have in the 8th through to the 10th century the most radical free thinkers of the medieval period, far more, I think, radical than anyone contemporary in the Christian West. So someone like al-​Rawandi who comes across almost like as an agnostic or atheist there, even though I think it’s difficult to label him. And unfortunately, we only have sort of his ideas from his ideological enemies. But it seemed quite clear that he is very, very heterodox and sort of rejects prophecy, rejects holy books as constituting truth. And even today, in some Muslim majority countries, that could land you in very hot, hot trouble. And you have someone like al-​Razi who also points to reason as being the ultimate guide rather than sort of orthodox religious believes.

0:16:04.0 Jacob Mchangama.: And you had caliphs who were certainly not committed to free speech or tolerance in the way that we understand those concepts today, but who nonetheless sponsored the translation of almost all secular Greek ancient works on philosophy and science and medicine and astronomy and so on. And then that creates… That helps inspire a number of great philosophers, as I mentioned, and polymaths, whose ideas inspire people in the West, including Aquinas, and contribute to the spreading of Aristotelian philosophy and pagan text in the West. And that Aristotelian philosophy in the context of emerging universities becomes a real game-​changer, because you have these who are perfectly pious Christian scholars and academics, but who have an insatiable thirst and appetite for Pagan text and want to expand the permissible limits of reason and the use of Aristotelian philosophy. And initially, you have these speech code ban in the University of Paris and others. But then suddenly sort of academic freedom and inquiry becomes a competitive advantage as other universities say, “Well, if you wanna study a bit of a Aristotle, you can come over to our university because we don’t ban that.” And that in turn creates a pressure for the church and universities to sort of gradually allow more and more pagan philosophy until Aristotelianism becomes a part of orthodoxy itself later on.

0:18:00.3 Trevor Burrus: Thanks to Aquinas, yep.

0:18:02.3 Jacob Mchangama.: Yeah. So that I think is a hugely important part of the story. Even if there’s no concept of free speech as such, even though the permissible inquiry, limits of inquiry and academic freedom would not involve… Would not extend to sort of rejecting Christianity or engaging in atheism, or the like, that would be pushing it too far. But I think it has an influence on later developments. And in that sense, I think it’s fair to say that the medieval period has some really important elements for the wider history of free speech. But I think another reason why it would take such a long time for principled free speech to develop in the early modern period is the fact that Roman Republicanism, that the concept of free speech there was more influential than Athenian egalitarian free speech. So in the history of free speech, you see a recurrent pattern between a competition, if you like, between an egalitarian conception of free speech with its roots in the Athenian democracy, where everyone, no matter how poor or uneducated, has a voice, at least theoretically in public affairs versus the more egalitarian top-​down approach of the Roman Republic where it’s principally an educated, wealthy elite, sort of the senatorial types like Cato and Cicero, who exercise free speech, and where ordinary citizens, the plebs and the like, don’t have, for instance, a right to speak in assemblies, unlike in Athens, and where the Romans have distinguished between liberty and licentiousness.

0:20:01.5 Jacob Mchangama.: And whereas, they look up on the Greeks as tolerating licentiousness. And the Romans, someone like Cicero, who lauds free speech as a great ideal. But he sees sort of one of the reasons why the Greek civilization is no longer the front runner was because they allowed the unwashed mob to hold political power, and these unlearned people. So the Romans had a much more top-​down elitist conception of free speech, which in early modern times and also in the Enlightenment, held more sway among many early defenders of free speech who did not necessarily see free speech as extending to everyone. So someone like Voltaire is a good example. He believed in free speech. But he also believed in sort of enlightened absolutism. So he would see sort of… Would have these absolutist rulers, and they should allow free speech for a small learned elite. And that would then lead society into a better place, but that did not extend to the unwashed mob, who should be treated like monkeys.

0:21:11.0 Trevor Burrus: How much does the printing press matter in this story?

0:21:14.9 Jacob Mchangama.: Oh, I think matters immensely. Of course, the printing press does not lead to the principle of free speech, but it leads to the practice of free speech for a while at least. And of course, initially the printing press is really gridded as a divine instrument by the Catholic Church, for instance, because it allows the church to spread its message much fast and much more widely, it allows orthodoxy to be kept in order and defined much more clearly and uniformly. But then an honorary constipated German monk comes along by the name of Martin Luther. And he has other ideas. And he really sort of invents the art of religious populism. If Martin Luther had been on Twitter today, he would have had a lot of followers and many hot takes, and been extremely popular, because instead of engaging in dry theological Latin treatises, is he starts writing in the vernacular German and writes short, punchy prose, garnished with cartoons and memes that appeal to the ordinary persons, to emotions, and the imagination of ordinary people. And of course, Martin Luther comes to the conclusion that the Catholic Church is basically engaged in a huge scam, and that he has understood the truth of the Bible, whereas the Catholic Church has corrupted it. And of course, the Catholic church is not too pleased.

0:23:03.5 Jacob Mchangama.: And Martin Luther is given the chance to recant, and he refuses. And then he sort of churns out these pamphlets. He translates the New Testament into German. He encourages ordinary people to be taught how to read and write in order for people to be… Children and so on to be instructed in the Bible. But what I think is important to stress is that Martin Luther did not believe in universal freedom of conscience. It’s not that he said, “Well, everyone should have the right to read the Bible. And if they find whatever they find in there to be the truth, that’s fine.” He believed that he had the truth. And so he wanted everyone else to see the same truth as his. But then what happens is when you allow everyone… When you democratize access to the Bible, people don’t have the same interpretation. People get all kinds of crazy ideas, from Anabaptists with proto-​communist ideas to an alphabet soup of various Protestant sex, and that horrifies Luther because he sees the disruption. And then he turns into someone who advocates the death penalty for blasphemy and so on. And so in many ways, the early Protestant reformers were as committed to intolerance and censorship as the Catholic church.

0:24:40.7 Jacob Mchangama.: It was not like they were these… At the vanguard of toleration and free speech, even though some Protestant historians have tried to sort of paint a straight line from the Reformation to freedom of conscience. Now, these developments are certainly related and very important for later developments. But it would not… Martin Luther was certainly not a free speech absolutist in any sense. But the genie was out of the bottle, and it led, of course, gradually through religious wars and persecution and so on, to various conceptions of tolerance from grudgingly accepting that if you lived in a country with a Catholic king or prince, then the population had to be Catholic and vice versa with Protestants, to expanding conceptions of religious tolerance. And also just the fact that the printing press made it more difficult to censor all speech, even though centralized attempts to censor speech were certainly put in place, especially with the Counter-​Reformation. And I think it just gradually over time accustomed Europeans to be confronted with ideas that they were not used to, that were previously thought dangerous. And then over time, they saw that being confronted with different religious ideas, those that differed from yours was not necessarily a threat to national security or your salvation, and that sowed the seeds for later developments pointing towards all sorts of secular free speech.

0:26:35.0 Trevor Burrus: Yeah, that seems like the post-​Westphalian compromise. Seems like an important point, even though as you pointed out, part of that compromise was that the ruler got to dictate within his ruled area what they had to believe. But there you start to see the seeds of this mutual disarmament, I think, that is part of liberalism in the small [0:26:57.9] ____ that basically, today you, tomorrow me. Like, I’m not gonna do this to you, so you can’t do it to me. And I think you see that in the middle of the 17th century for the first time.

0:27:09.7 Jacob Mchangama.: Sure. And interestingly, the first places we see religious toleration, almost in a protoconstitutional manner is, for instance, in 1568, the Edict of Torda, which is sort of one of the first edicts of religious freedom in European history, in Transylvania. And that sort of essentially provides an individual right for people to follow their conscience in religion. So that’s not in the West, that’s actually in East and Central Europe, you have some of the same things in the Polish-​Lithuanian common wealth, but then of course, when we move West, the Dutch Republic becomes the epicenter of religious tolerance and the first printing house of Euro. But it’s important to note that, I mentioned Dirck Coornhert as an early proponent of free speech and religious toleration, but he was also someone who was censored in the Dutch Republic. So the Dutch tolerance was not universal, and it was not principled. In fact, it wasn’t even codified, it was not… Apart from a commitment to religious tolerance in the founding document of the Dutch republic, there was no law or constitution that protected free speech, but there was something again which I think is sort of a general tendency, there was a very decentralized control over information and opinion, because that you had a very weak political center in the Dutch Republic.

0:29:00.0 Jacob Mchangama.: So you had these quite autonomous provinces, and they guarded their political autonomy quite jealously because they had been the subject of the Spanish Habsburg that had sort of subjected them to inquisition and all these things. So if one province didn’t like one printer, he could skip to another province that might tolerate him. And one of the reasons might very well be commercial. The Dutch were very commercially-​minded, and so they could make a lot of money by printing stuff that could then be smuggled across borders to European countries that had much more rigorous censorship. But there was also a more cosmopolitan atmosphere, I think, for instance in Amsterdam. So you have… Ultimately, you have Descartes, René Descartes flees to the Dutch republic, you have Spinoza, of course, who writes his great treaties, which has a chapter on free speech and freedom to philosophise, which he sees as the precondition for social peace in a diverse state, which is completely… Turns things on their head in the ways that people thought about these things, where sort of religious uniformity was seen as a precondition for social peace. And even John Locke spends time in the Dutch Republic. So it is comparatively very open-​minded and tolerant. And Pierre Bayle, another great protoliberal. So, the Dutch Republic attracts these free thinkers who contribute mightily to liberal ideas.

0:30:56.2 Trevor Burrus: One person I want to ask you about, ’cause I had not really heard the story about Johann Friedrich Struensee and his maybe two months of liberal rule in Sweden or Norway. Was it Norway?

0:31:10.3 Jacob Mchangama.: Yeah, Denmark-​Norway. The interesting thing is… So we talked a bit about the Dutch Republic and its heydays in the 17th century, but the 18th century is sort of the breakthrough of free speech in Europe. So by that time, even sort of absolutist rulers like Frederick the Great of Prussia, Catherine the Great of Russia, Joseph II, I think, in Austria sort of come around to the idea that it’s important with some degree of free speech. Sort of a very elitist model of free speech, but for an enlightened state it was necessary for progress and so on. And of course, you had… In Britain, you had radical Whigs, like the authors of Cato’s letters and other that really spread the idea of free speech. But the first legal protection of free speech came in Sweden in 1766, and the first country to abolish, formally abolish any and all types of censorship was Denmark, the kingdom of Denmark-​Norway. Now that owed a lot to Struensee, who you mentioned, who was actually a German physician, became the physician of our bashed-​head crazy King, Christian VII.

0:32:33.9 Jacob Mchangama.: I know that he was bipolar or schizophrenic, but he was essentially mentally ill, and Struensee not only moved into the bedroom with the Queen, he also took over the throne. And he was a radical enlightenment proponent, into Spinoza’s ideas and the like. So he just sort of started signing all these edicts, an amazing amount of edicts, sort of abolished torture, free political prisoners. And one of the first moves was simply just to say the whole idea of pre-​publication censorship is just now gone. So overnight, Denmark which had been this very sort of centralized strictly Lutheran absolutist state, engaged in an experiment of egalitarian free speech where everyone could write whatever they wanted.

0:33:29.0 Trevor Burrus: But even Struensee only had a certain tolerance for that?

0:33:32.8 Jacob Mchangama.: Yeah. Struensee probably expected that the Danes would be grateful and thank him, and lots of Danes… All the document from that area and pamphlets are still saved, and there will soon be an English translation of them of that era that [0:33:49.3] ____ great scholars. So if you’re interested in that, you can look that up. But a lots of Danes were very critical of Struensee. So they didn’t appreciate a German usurper who didn’t even speak their language, who bedded the queen, and had these radical ideas, so they criticized him. And much like today’s discussion also about social media, you also had all kinds of false rumours and not so nice things being written in shrill pamphlets, where people started sort of attacking each other. And so in 1971, Struensee said, “Oh, you know what… ”

0:34:34.1 Trevor Burrus: 1771.

0:34:35.3 Jacob Mchangama.: Yeah, 1771, sorry. “I might well have abolished pre-​publication censorship, but post-​publication restrictions on free speech still apply,” but that couldn’t save him, so the damage was done, and he had yet basically undermined his own rule. And so he was deposed in a palace coup, and he was brutally executed, was dismembered and his body parts and head displayed prominently around the country.

0:35:01.7 Trevor Burrus: So, hoist by your own petard, maybe?

0:35:05.7 Jacob Mchangama.: Yeah, you can watch the film, Royal Affair, which shows the whole sorted affair. But interestingly, even though censorship came creeping back, there was… Formally pre-​publication censorship was never again fully re-​introduced in Denmark. So you could say that in a certain sense, Struensee’s radical enlightenment reforms survived even if only limping on.

0:35:34.8 Trevor Burrus: And he didn’t. So America figures pretty prominently in the story of free speech. One of the things I do at Cato, is First Amendment stuff in Constitutional Law. We have a pretty strong First Amendment here. Do you have a theory about why the colonists sort of adhered so strongly to this very strict principle of free speech, and then very quickly didn’t, 10 years after they passed the bill of rights?

0:36:03.9 Jacob Mchangama.: Yeah. So I would say it’s interesting to go back to the 17th century and look at the incredibly strict speech codes in the colonies, and even some of the first newspapers and an attempts of journalism that were very quickly cracked down upon. And so, for instance, if you go to Pennsylvania, William Penn is this, I guess, person of conscience who’s then given… Pennsylvania set up this experiment with religious toleration, and that’s all great, but I think it’s in 1683, William Penn presides over a government council that convicts someone to be whipped in the marketplace of Philadelphia for sedition, because you were not allowed to criticize the government both under the British common law of sedition, but also under these colonial laws against sedition that were often strictly enforced. Rhode Island, the same, Rhode Island which was sort of called Rogue Island, because of its commitment to religious tolerance, you could be heavily severely punished for criticizing the government there. But I think one of the game changers is probably Cato’s letters that I mentioned which sort of go viral in the colonies.

0:37:33.3 Trevor Burrus: Which is what the Cato Institute is named after too.

0:37:35.7 Jacob Mchangama.: Exactly. And Cato’s letter number 15 comes up with this great enlightenment meme that goes viral all over Europe, even reaches radicals in Russia, that free speech is the bulwark of liberty and the dread of tyrants. And you see that being repeated over and over in pamphlets in the colonies. And then you have, in 1735, I think, the Zenger case, where the governor of New York has set up a newspaper to praise himself, and then his political rival set up another newspaper to ridicule him and criticize him, and he’s desperate to… He tries all kinds of things, he tries to have a grand jury indictment, that fails. He can’t convince New Yorkers to convict people for engaging in seditious libel, so ultimately, he goes after the publisher.

0:38:44.0 Jacob Mchangama.: And sort of uses this very sort of Draconian measure where he’s basically brings the case himself, sort of circumvents the grand jury system, and sort of ensures that he has a friendly jury and a judge, but then he still loses the case. So a great lawyer, Alexander Hamilton, he’s called, not that, not that Alexander Hamilton, another one, the greatest trial lawyer of his generation comes in, and he, basically bases his argument on Cato’s Letters and the great bulwark of liberty theory, which the New Yorkers had read in this opposition newspapers, where whip prints of Cato’s Letters had been frequent. And so this poor, hapless Dutch printer, Zenger is acquitted. And that is sort of more or less the end of the attempts to have people convicted for seditious libel in jury trials. And I think that then opens up… That already I think points to a culture of free speech in America, where you also had sort of people in taverns and in pamphlets discussing all kinds of things. And then again, I think you have weak central authority.

0:40:17.7 Jacob Mchangama.: So, in one colony, it might differ from the other and the ability of the British to really impose seditious libel laws the way that they could back home in Britain was not the same, because the colonists had other ideas and were adamant that they got to discuss and criticize their rulers. So in that sense, I think the 18th century breeds a much more robust culture of free speech in the American colonies, which paves the way towards when things go south from a British point of view in 1765. And then also, I think free speech really becomes unifying. You sort of… It becomes one of the principles that you can point to as specifically American, and one that the British are trying to snuff out. And that shows just how despotic the British are. It’s a bit rich by some of these slave holding American revolutionaries that talk about British slavery, but that’s sort of the wording that they use. So it becomes a unifying principle, which sets them apart from the old British way of doing things. And at the same time, the culture of free speech has made it impossible for the British to sort of impose centralized command and control.

0:41:34.2 Jacob Mchangama.: And I think that is a big difference to what goes on, for instance, with the French Revolution, where things go out of hand. There’s no comparative culture of free speech in France. You’ve had this very elaborate pre-​publication and post-​publication censorship, so you had a small elite of enlightenment figures who could write things for the elite, but you didn’t have the same culture of free speech extending to ordinary people. And so there was no real… You weren’t accustomed to discussing ideas, and so the principle of free speech and debates over free speech in France quickly turned deadly, and sort of political heresy became a death sentence.

0:42:21.7 Jacob Mchangama.: Once the First Amendment, of course, had been adopted, and ratified in 1791, it wouldn’t take long for Americans to compromise the First Amendment with the Sedition Act. But, when you look at the fallout from there and compare it to what happened in France or Britain at the same time, this universal crackdown after the French Revolution, then it’s pretty mild stuff in the US, in America compared to that. So that’s a very long way of saying that I think a culture, a comparatively strong culture of free speech in America meant that this principle was given a much stronger legal protection, at least on paper. But also meant that the first attempt, the Sedition Act backfired spectacularly. So, Republican newspapers mushroomed and the Federalists were trounced and never to be seen again.

0:43:21.1 Trevor Burrus: Now, hopefully, we’d hope that this development of believing in free speech and Western democracies is established, that we’ve got to this point, we can read this history, your excellent book, and say this was a long struggle to get to a point that we should accept as liberals that freedom of speech is sacrosanct in a part of any free society, but it’s not always the case that everything goes up and up and up and things could be going the other way now. [chuckle]

0:43:52.3 Jacob Mchangama.: Yeah, no, I think in a certain way, certain sense, we live in a golden age of free speech. So certainly many… If Spinoza was… If he could see what could be said and shared in real time across the globe without censorship, he would be amazed, maybe he would actually think that things had gotten too far. So in that sense, there’s no doubt that we enjoy free speech on a whole different level. It’s a constitutionally protected right. It’s at least in some countries also, it’s been elevated to a norm of international human rights law, even if it’s not respected as such everywhere. And even, you know, even in many liberal authoritarian states, you have to pay lip service to the idea of free speech. And just the technology that you and I are using right now is, of course, incredibly potent in furthering the practical exercise of free speech. No one is listening in, I hope, on this conversation or censoring it. You can upload it and I’d be very surprised if you were to suffer any illegal consequences for it.

0:45:13.0 Jacob Mchangama.: So but on the other hand, I think that we are… That this golden age is in retreat, so we are living through a free speech recession, which is, I think, started more than a decade ago, where we see sort of… You have all kinds of institutions that to try to measure free speech and democracy, Freedom House, Varieties of Democracy, and so on. I think pretty uniformly, all of them… All of the data points to free speech being in global decline for more than a decade. You also see it with number of jailed and killed journalists and so on. Now, this is not surprising in authoritarian states, of course, because since the overthrow of the Athenian democracy, the page one of the authoritarians playbook is to crack down on free speech and ensure control over information and opinion. But what I think is very worrying is that we see liberal democracies, particularly in Europe, also following this trend of restricting free speech, and especially due to what I call elite panic about in the digital age.

0:46:16.6 Jacob Mchangama.: Sort of a recurring or re-​enactment of the conflict between egalitarian and elitist free speech, that elites now are worried that social media and the internet allows the unwashed mob access to unfiltered information, and the institutional gatekeepers resent them not being able to filter that information in a responsible manner. And of course, it is true that free speech comes with harms and cost, and some of those harms and costs might be amplified by social media, even though I think we tend to ignore the… All of the benefits and take them for granted because we’ve been spoiled with free speech for a long time.

0:47:04.9 Trevor Burrus: Should we be concerned about the size of playthings like Twitter and Facebook then?

0:47:09.4 Jacob Mchangama.: Yeah, I think so. You know I think… If you ask me sort of seven, eight years ago, I think I would have probably given sort of a very orthodox libertarian answer, that this is private property and these platforms can do whatever the hell they want, no one has the right to interfere. And I still don’t think… I’m not on board with the Republicans who want to… The government to legislate and say that they have to uphold viewpoint and neutrality or First Amendment like standards. I think that will lead to worse places than we are now, but I still think at the same time, that sort of libertarian orthodoxy cannot… Ignores the fact that the practical exercise of free speech today is exercised on these platforms, and so if you were a politician or a prominent media… Someone in the media and you were thrown off, you were de-​platformed, then it’d be very difficult to have a voice [chuckle] and reach people.

0:48:21.8 Jacob Mchangama.: And so it does impact free speech. And that, again, has to do with the idea of the culture of free speech. And I think there are very strong cases to argue that free speech is not only about the relationship between state and individual, but about a larger commitment to tolerance and social descent. And that goes all the way back to the Athenian democracy and the idea of parrhesia, you see it also in John Stuart Mill, you see it in Tocqueville’s famous treatise on Democracy in America, where he says, “The American commitment to free speech, it creates a formidable barrier around liberty of opinion, but woe, to the person who goes outside majority opinion, that person will be subjected to persecution, and it can be worse than an auto-​da-​fé that you could face in Europe.” George Orwell says some of the same things. Frederick Douglass on slavery, who’s someone who’s being heckled by mobs and not by the government.

0:49:23.6 Jacob Mchangama.: So I think… And I think that… So there’s an analogy there to these private platforms. What is the answer then? I think that’s difficult, but I would say, given how decentralized authority has been key in furthering free speech, I think a technological development where we have a more decentralized ecosystem, online ecosystem would help, sort of back to the original ideals of the internet, if that is possible and feasible. And also providing users more control over content, I think is another… So if the mega-​platforms did less content moderation sort of scale down a bit on that, but then allowed users and maybe third parties to come in and offer solutions that you could flick on and off. So if you’re worried about anti-​Semitism, so the ADL could create a filter with a very broad definition of anti-​Semitism and you could be spared that kind of thing, but it wouldn’t have the huge centralizing effects as if Facebook adopted that definition of anti-​semitism for 3.3 billion people.

0:50:35.6 Jacob Mchangama.: So those are the… Some of the solutions that I am hoping to see. But I… These are early days. If you looked at journalism 200 years ago, and you look at journalism today, a lot has changed. And interestingly, people were also extremely worried about newspapers back then, and so that is a recipe for disaster. And today, it’s sort of the traditional media and newspapers who were once seen as a radical corrosive forces to institutionalized society, who are at the forefront of demanding more regulation of social media.

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0:51:27.6 Speaker 3: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple Podcasts, or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.

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