A History of Free Speech

By Chelsea Follett & Jacob Mchangama

Courtesy https://www.humanprogress.org/ Article Link : https://bit.ly/3vGsHsd

Chelsea Follett: Today joining me is Jacob Mchangama, an expert on freedom of speech. He is a Danish lawyer, human rights advocate, and the founder and director of Justitia… Or Justitia, maybe, is the Danish pronunciation?

Jacob Mchangama: Yeah.

Chelsea Follett: It’s a Copenhagen-based think tank focusing on human rights, freedom of speech, and the rule of law. He is also a visiting fellow at the Foundation for Individual Rights in Education, and the host of Clear and Present Danger, a history of free speech podcast. And his writings on free speech have appeared in The Economist, The Wall Street Journal, The Washington Post, Foreign Affairs, and Foreign Policy, among other outlets, including many academic and peer-reviewed journals.

Chelsea Follett: And he joins me to discuss his new book Free Speech: A History from Socrates to Social Media, which offers a definitive account of free speech from the ancient world to the present age and makes the case that the free exchange of ideas is essential to progress. Jacob, how are you?

Jacob Mchangama: Good, thanks. Thanks for having me on. I really have been looking forward to this.

Chelsea Follett: Great. So, to begin, what is this book about and what made you decide to write it?

Jacob Mchangama: Yeah. Well, it’s about what it says, free speech. And so it’s an attempt, I guess, to look at the present through the prism of the past to try and get a better understanding of why and if… Why, if, and how, maybe even, free speech matters. Because I come from a part of the world where I think free speech is very much taken for granted. And we have all these debates about free speech, especially in the age of the internet and social media, where it seems that a lot of people even in democratic states supposedly committed to free speech, we’ve sort of lost faith in free speech and see this value increasingly as a threat to democratic values.

Jacob Mchangama: And so I try to look at the history of free speech to answer, “Is that really the case?” And maybe also show that some of the debates we’re having today are not as new and unique as we might have thought. In fact, many of them are sort of regurgitations of previous debates that are century or even millennia old.

Chelsea Follett: Right. And related to that, toward the start of the book you write, “Ask a college student when the fight for free speech began, and you might get any number of responses.” But in your view, when did the fight for free speech begin?

Jacob Mchangama: I think probably there always, in organized human society, has been people who were punished for their ideas. We certainly have a lot of ancient law codes, surviving codes, that suggest that speech codes protected their rulers against their subjects and not the other way around. But the fact that you were punished for speech does not necessarily mean that you were advancing the idea of free speech as a principle. So, I would argue that the Athenian democracy, which originated some 2500 years ago, is the cradle of free speech. The ancient Athenians had a direct democracy, which by its time was radically egalitarian in that freeborn Athenian male citizens had a direct voice and right to vote on political affairs. So, they had equality of speech called isegoria. But they also had this wider cultural concept of free speech called parrhesia, which means something like “uninhibited speech.” So, this is what, until he was around 70 or so, allowed Socrates to roast people in the marketplace, in the agora.

Jacob Mchangama: And allowed someone like Plato to set up an academy where he could teach philosophical teachings that sort of went against democracy, which allowed playwrights and others to advance sort of heterodox ideas that clashed with the religious ideas that were prevalent at the time, and allowed them to poke fun at gods and the high and mighty. But as Socrates’ case shows, even the Athenians had their limits.

Chelsea Follett: Right. You start out by discussing those ancient origins of the free speech debate, including the mass burning… The first mass burning of books apparently was around 200 BC in China. And you spend a lot of time on Athens, which you identify as the origin of free speech, and also Rome with its more elitist conceptualization of free speech. So, could you talk through some of that history and explain what ancient Athens and Rome can teach us about free speech?

Jacob Mchangama: Yeah. So, I think the Athenian conceptions of free speech that I just discussed are very much related to the egalitarian and democratic nature of the Athenian democracy. So, if you go to someone, an orator like Demosthenes, he talks about the qualities of Athenian democracies in that free speech allows you to pursue the truth. Sort of ideas that maybe today we associate with John Stuart Mill, they were actually articulated a lot earlier. And in Pericles’ famous Funeral Oration, he sort of praises the Athenian democracy also, just everyone has a voice, even the poor. And they debate things before they rush into action.

Jacob Mchangama: Now this is, of course, an idealized version. These are Athenians praising themselves. But I think Demosthenes has a point. He says that in Athens, you’re free to praise the Spartan constitution and criticize the Athenian constitution. But if you go to Sparta, the bitter rivals and enemies of the Athenians which had a much more oligarchic top-down government, you were not allowed to praise the Athenian constitution. You could only say nice things about Sparta. So, he basically articulates a vision of free speech which says that the litmus test is that you’re allowed to criticize the very government you live under. And I think that’s still very much sort of the core of free speech today. Now, in the Roman Republic… Of course, the Roman Republic goes on for a long time, so this is like a very brief executive summary. But it was a much more top-down elitist conception of free speech. So, ordinary citizens did not have the right to speak in assemblies. It would be typically magistrates that spoke.

Jacob Mchangama: So, free speech was mostly exercised by the senatorial elite, great orators like Cato the Younger and Cicero, and they were the ones, whereas… And so the Romans distinguished between liberty and licentiousness, and they often distinguished explicitly between the Athenian or Greek mode of free speech and their own more limited. And they thought that the Athenian form of direct democracy was a dangerous form of mob rule, so free speech was great but only if it was exercised by the learned wealthy elite, not the unwashed mob. And I think there’s a lot of continuity in that debate throughout the ages.

Jacob Mchangama: So, every time the democratic or the public sphere is democratized or expanded through new technology or through new political developments, there’s this existential dread on the part of the established elites, the gatekeepers of the public sphere, that you can’t have these groups, whether it’s women or racial minorities, or the poor and propertyless, you can’t give them a voice in public affairs and everything that they should be confronted with should be filtered by responsible elites. And I think we see that today, even today with social media.

Chelsea Follett: Absolutely. Related to that, you write, “Free speech entropy is not merely political, but deeply rooted in human psychology.” What do you mean by free speech entropy, and why is it so pervasive?

Jacob Mchangama: Yeah, because I think as a species, human beings, we’ve sort of evolved a default setting of software, if you like, which has been very useful for our survival as a species throughout millennia. But it’s not necessarily very useful for living in diverse heterodox societies, because that default setting seems to be one of intolerance. And so we’ve developed this fragile but extremely useful patch, if you like, on top of our default setting, which is tolerance and free speech. But unless it’s constantly guarded by a very efficient firewall, our default mode sort of overwrites it and we’re back to intolerance.

Jacob Mchangama: And that’s why you see in a lot of societies that have achieved some degree of free speech, entropy sets in, and free speech is eroded due to the perception of threat or just our complicated human nature has a difficulty upholding this very abstract principle of free speech, which seems abstract at times unless you are under… Unless your own voice is being actively threatened or oppressed.

Chelsea Follett: Right. Let’s walk through more of the history. You describe what you call the not so dark ages of free speech issues in medieval Islam and what was called Christendom. Tell me about the not so dark ages and what lessons they may hold for us regarding free speech.

Jacob Mchangama: Yeah. So, there was, of course, a time where historians looked at medieval times and looked at it as dark ages between antiquity and the renaissance. And of course, it’s a much more nuanced picture than that. So, you have, for instance, in The Abbasid Caliphate and adjacent territories in Islamic lands, you have a very fertile ground for philosophy. You have these incredible polymaths who were incredibly gifted scholars, astronomers, philosophers, mathematicians.

Jacob Mchangama: You even have the earliest, I think, medieval and most radical medieval free thinkers, someone like Al-Razi, a Persian polymath who they praised reason as the ultimate yardstick of which to judge things, have very critical things to say about religious orthodoxy, about prophecy and holy books. And of course, you have the translation movement, so you have these caliphs who translate almost all secular Greek philosophical books into Arabic, and also they’re certainly not committed to free speech. They were absolutist rulers, and also by all standards, very intolerant when it comes to religion, but comparative to what was going on in much of Christendom at the time, it was tolerant. It was also a decentralized environment.

Jacob Mchangama: So, people could… It was difficult to stamp orthodoxy, to impose orthodoxy on everyone. So, that was a very fertile environment which helped, I think, contributed to the spread of Greek thought to Western Europe where Aristotelian philosophy becomes this incredible app, if you like, at the barging universities at the time, which is completely irresistible to medieval scholars who are eager to use Pagan philosophy and reason to expand their horizon.

Jacob Mchangama: Not because they were not pious Christians, they certainly were, but they thought that Pagan philosophy and reason could help enlighten the divine truths of God. Whereas more orthodox views of science would limit that, or that there was an attempt, a top-down attempt initially, at least by both the Catholic Church and universities to say, “Oh no, Aristotelian philosophy is too dangerous.” So, they had what we might today call speech codes that they try to stamp out Aristotelian philosophy, but then academic freedom basically became a competitive advantage. So, if one university, if the University of Paris says, “No, you can’t have Aristotelian philosophy here… “

Jacob Mchangama: There might be universities in England that try to poach scholars by saying, “Hey, come over here and we’ll allow you to read some Aristotle.” And so, this becomes, I think, a really important part of Europe’s collective brain, sort of the circuitry connecting in your collective brain that paves the way for later groundbreaking scientific and philosophical developments. And of course, the flip side of that is that at this period of time, you also have the Medieval Inquisition, [chuckle] you have the Spanish Inquisition…

Chelsea Follett: Yes.

Jacob Mchangama: Towards the end of the period. So, it’s not like there was certainly this time in European history where you could say whatever you wanted. There were the permissible limits of inquiry and speech, and religion was certainly contested. And I think rulers were maybe less worried about this very tiny educated elite of Latin speaking scholars pouring into ancient texts, but much more worried about the Orthodoxy of the Church being challenged among ordinary people.

Jacob Mchangama: And so you had these Cathars and other religious minorities that were brutally persecuted. And you had, as again, the Medieval Inquisition, which set up sort of streamlined a process of religious orthodoxy, which didn’t kill as many people as you might have thought, but I think was very, probably, very effective in creating self-censorship in communities around the medieval times. And then we can get to how the printing press then became a game changer, which allowed heterodox voices to spread where the Church had been able to stamp them out previously.

Chelsea Follett: Tell me about that, tell me about The Great Disruption and what you call the Explosive Cocktail of the printing press and the Protestant Reformation, and what that meant for free speech.

Jacob Mchangama: Yeah. So, there’ve been a number of earlier thinkers and theologians and others who had challenged the authority of the Catholic Church, someone like the Czech reformer, Jan Hus, who was burned at the stake. You have someone like Marsilius of Padua who wrote challenging thesis and who was excommunicated. But the reach of these ideas were limited by the fact that they didn’t have the printing press. So the printing press initially is actually hailed by the Catholic Church, because it sees it as a way of basically getting its message out to more people, consolidating its theological orthodoxy and institutional power, so it’s seen almost like a divine gift.

Jacob Mchangama: But then an honorary constipated German Monk comes along [chuckle] to change history and in the shape of Martin Luther, who really perfects the art of religious populism, if you like. So, he starts writing in German. He starts writing punchy short pamphlets. He uses memes in the shape of cartoons. So, he really appealed to the ordinary citizen and those who can’t read. You can have people read it out to them in a way which is entertaining, which appeals to emotions, which uses a concept and narratives that people can relate to. And so his ideas just spread like wildfire and no one comes even close to competing with Martin Luther. So it’s like the Catholic Church has 500,000 followers on Twitter and Martin Luther has 50 million. [chuckle] I don’t know if that’s a fair representation, but certainly, he really is able to challenge the authority of the church, and through that also the whole political situation in contemporary Europe. And he is of course excommunicated and declared also an enemy of the state, and escapes narrowly, what would likely have been a bonfire as a heretic.

Jacob Mchangama: But it’s interesting with Martin Luther, because initially he champions himself as someone who sees freedom of conscience as absolutely decisive. So, he’s summoned before the emperor, the emperor sort of says, “Did you write these books? These heretical books.” And he says, “Yes.” “Do you want to recant?” And Martin Luther says, “No, I can’t. Show me in the Bible where I’m wrong. If you can’t show me where I’m wrong, then I am compelled to follow my conscience. And neither an Emperor or a Pope can make me think otherwise, unless they can persuade me.”

Jacob Mchangama: And that of course, is a very, very powerful watershed moment in the history of freedom of conscience. But we shouldn’t be fooled into thinking that Martin Luther was this Principled Champion of Freedom of conscience for all. In essence, I think Martin Luther very much found that he had discovered the truth of Christianity, and that the Catholic Church was simply wrong and that it was corrupting the true meaning of Christianity, which he had found. So, Martin Luther, because he thought it was essential that the ordinary people gained access to the truth in the Bible, he translated the New Testament into German, and he stressed the importance of teaching children and ordinary people how to read. But, what happens is when you give ordinary people access to the Bible, people are going to interpret it in different ways. And not everyone is going to become an Orthodox Lutheran and follow slavishly the theology of Martin Luther.

Jacob Mchangama: So, suddenly you have this alphabet soup of Protestant sects that pops up, and some of them have these extremely radical ideas which Martin Luther thinks are horrendous and horrific, and you know… Gradually, he becomes extremely intolerant himself. So, he starts advocating extreme censorship, even the death penalty for blasphemy, and this goes for Protestant sects like Anabaptists, for instance.

Jacob Mchangama: And also, he ends up writing this extremely viciously anti-Semitic tract called “On the Jews and Their Lies,” where he basically is disappointed at not having been able to persuade German Jews to convert to Christianity. And then he’s, “Oh, then burn their synagogues,” and basically advocating a death penalty in certain circumstances. So, it would be wrong, I think, to see Martin Luther as a champion of freedom of conscience and free speech.

Jacob Mchangama: I think he’s an extremely important part of the history of free speech, but I think, if you were to transport Martin Luther into today, he would probably be horrified at the consequences, at the degree of secularization and the values that people in contemporary Germany, and a Lutheran state like Denmark where I am, the values that they hold. So, the unintended consequences of Luther’s Reformation are huge, but I don’t think we should see those as the intended consequences of Martin Luther.

Chelsea Follett: So, let’s move on to the Enlightenment. You describe the Dutch and the decentralization as a mechanism for promoting free speech. You talk about England’s forgotten martyrs of free speech. And you also describe the first legal protection of press freedom that was truly all-encompassing, in Sweden in… 1770, is that right? And how it didn’t go well for them either.

Chelsea Follett: In Denmark, yeah. Yeah, so Sweden and Denmark become some of the first countries. But I think it might be interesting to go to the 17th century. As you mentioned, the Dutch Republic is the ground zero, if you like, in early modern Europe, of free speech protections. Even though, in the 16th century, you actually have places in Eastern and Central Europe where you have religious toleration, which is much more protective than anything, so in Transylvania and the Polish-Lithuanian Commonwealth.

Chelsea Follett: Why, what is the significance of Transylvania? You spend a…

Jacob Mchangama: Yeah, I don’t know how significant… But I think it alters our idea, when we think of tolerance and religious freedom as being a Western European concept, that you have this edict in Transylvania which basically protects the individual’s right to hold religious beliefs, even anti-trinitarian beliefs, which was something that was seen as especially horrific and was punished draconianly even in subsequent centuries. Even in a place like England, if you could hold those beliefs. So, I think it’s important at least to mention that Eastern and Central Europe had earlier experiences with religious freedom than Western Europe, and almost quasi-like constitutional protection of those freedoms. But that did not entail political free speech or free speech more generally.

Jacob Mchangama: But if you go to the Dutch Republic, we don’t see a legal or constitutional protection of free speech there as you alluded to. There was a specific culture and political environment in the Dutch Republic. So, the Dutch overthrew the Spanish Habsburg rule after a series of very bloody revolts, and the Spanish had instituted bloody inquisitions there. So, freedom of conscience was a big part of the narrative of why the Dutch provinces revolted, and it was protected in the founding document of the Dutch Republic. But it was not… Again, we have to always remember that at this time, finding people who were principled and consistent is very difficult. So, Catholicism…

Chelsea Follett: Even today.

Jacob Mchangama: Even today. Catholicism was generally prohibited even though it wasn’t always enforced, and there were… Tolerance waxed and waned according to how strong, for instance, the Reformed Church was in the Dutch provinces, which was sort of the dominant church. But nonetheless, even as early as the 1580s, you have someone like Dirck Coornhert, this heterodox thinker who argues in a tract that banning books has always been a way to quench liberty, and that heretics should basically be cured of their heretical ideas through words and not the sword. And you have, of course, someone like Spinoza, who in 1670, writes his famous Theological-Political Treatise, and where he argues that in a free state, everyone should be allowed to think what he wants and say what he wants.

Jacob Mchangama: That’s not the actual quote. And basically says that free speech is a natural right, and the right to philosophize is a natural right. And if you violate that, it’s tyrannical. And again, that book was brutally censored. It was one of the few things that could unite Protestants and Catholics, the crack down on Spinoza. But I think the fertile ground which allowed someone like Spinoza to develop those ideas had to do with the decentralized nature of the Dutch Republic and the commercial interest of printers. So, the Dutch Republic served a bit like the printing house of Europe, where there was de facto tolerance for much more radical ideas than elsewhere, and then Dutch printers and publishers could make money printing books that they could then export to… Smuggle them to European countries where they were banned. And rules, censorship rules in one province might not be enforced in another province that wanted to get a competitive advantage if they could attract more daring printers.

Jacob Mchangama: And then there was a more cosmopolitan nature and a comparatively higher degree of religious and intellectual tolerance in the Dutch Republic than elsewhere. So, if you compare to colonial America in the 17th century it was a pretty bleak environment when it come… If you go to Puritan New England, the laws on heresy and blasphemy were extremely oppressive. If you go to Virginia, Virginia’s governor wrote something like, “Thank God we have no printers and no education in Virginia,” because if you have books and education then the people will be basically… Get all these crazy ideas and not stay put in their place.

Jacob Mchangama: So, we have to wait until the subsequent century before the enlightenment sort of reached America. And as you rightly mentioned, the first sort of legal protection of free speech, we see that in Sweden in 1766 where you have basically, an Edict which protects free speech. There are some pretty significant caveats on sort of the Lutheran church, but interestingly it also provides for access to information. So, most official government documents people have a right to access them, which is very progressive for its time.

Jacob Mchangama: And then Denmark out of nowhere, this German physician who became the physician of our mad King and also slept with his queen, sort of had these radical enlightenment ideas and he basically becomes the de facto ruler of the kingdom and then in 1770, he just abolishes any and all censorship and people can say and write whatever they want. It doesn’t last very long because he’s executed in 1772 and then gradually censorship is re-imposed, but those are some really radical developments in the history of free speech.

Chelsea Follett: Right. And you also talk about the philosophical developments of the Asia briefs and foreign liberty and the philosophical underpinnings of freedom of speech developing. Can you talk a little bit about that?

Jacob Mchangama: Yeah. So, I think they’re… We can both talk about the practical exercise of free speech, which I think is… And then the theological underpinnings. I think one of the reasons why America develops a relatively, a comparatively robust culture of free speech is because in the 18th century, it becomes impossible basically for British colonial government to convict people in jury trials.

Jacob Mchangama: There’s a famous, “The Zenger case,” in 1735, I think, where a jury acquits someone of seditious libel for criticizing an important government official in New York. And after that case, Americans sort of no longer accept the idea that people should be convicted in criminal trials for seditious libel for criticizing public officials, basically. And then you have sort of in taverns and Inns and you have pamphlets that, where there’s a lively exchange of ideas. So, that’s sort of how the culture of free speech sort of emerges in the US. But then of course, you have the philosophy, so you have the French philosophers in the 18th century who fight to have the Encyclopedia, which aims to collect and disseminate all knowledge in the world. They have an existential fight with the old regime, and of course, you have Cato’s Letters.

Chelsea Follett: So, these radical British Whigs who write these very influential letters, especially Cato’s letter number 15, which talks about free speech as the bulwark of liberty and the dread of tyrants, and that becomes maybe the most influential free speech meme of the 18th century. So, it’s something that goes viral in colonial America, it spreads to revolutionary France, it even goes to Russia, where Russian radicals use it to challenge censorship under Catherine the Great. So, those are some of the more philosophical underpinnings of free speech at the time. But it’s still, I would say at this time, before we get to sort of the First Amendment and Madison, it’s still somewhat an elitist version of free speech. It’s not explicitly tied to a sort of radical egalitarian conception of free speech, it’s more a protection against arbitrary government, but not sort of the Athenian model full-blown of radical egalitarian democracy.

Chelsea Follett: Tell me about why free speech is the great bulwark of liberty as the Enlightenment thinkers described it. And how was that bulwark constructed in your view?

Jacob Mchangama: Yeah. So, I think these writers and others saw that if a… If you cannot criticize a government, if you cannot criticize your rulers, then arbitrary restrictions and despotism are sure to follow. So, that was a way to distinguish between absolutist rule and a form of rule where the interest of the citizens were taken into account and their broader liberties.

Jacob Mchangama: And so I think they saw free speech as basically providing the very basis upon which all the other rights and liberties and interests of the ordinary person rested. Without that, all protections of the individual, of the citizen would be rendered useless. So, that was, I think, the basis of the bulwark of Liberty theory.

Chelsea Follett: Right. So, clearly, we’ve not only made progress on free speech, but you argue free speech contributes to progress. And some people argue today that free speech primarily serves to protect the people with the most power in society to entrench their power, but you say it’s the exact opposite. You describe free speech as a weapon in the fight against oppression, and you discuss the history of free speech in America in regards to the institution of slavery, for example. Can you talk a little bit about that relationship between free speech and moral progress?

Jacob Mchangama: Yeah. Well, depending on your definition of moral progress. If you view abolition as… The abolition of slavery as moral progress as I do, then I would say there’s a pretty strong connection. And so there’s a point of time in American history around the 1830s, where abolitionists in the North start really organizing these campaigns of petitioning and writing pamphlets to people in the South arguing for the abolition of slavery that basically say, “This institution cannot be justified.” And as a consequence, Southern states, throughout the 1830s, adopt probably the most Draconian speech restrictive laws in the history of America. So, a number of them formally adopt the death penalty, I don’t know that anyone was actually executed for abolitionist ideas, but there are certainly cases of people being convicted and charged. For instance, there’s a case from Alabama where there’s a grand jury indictment against a person who had written a pamphlet where in which he argued that slavery ran contrary to the commands of God.

Jacob Mchangama: And it’s interesting to look at a state like Virginia. So, Virginia already in June 1776 or before the Declaration of Independence, adopted the first staple of rights, which actually sort of elevated Cato’s theory of the great bulwark of liberty into law. So, it said that press freedom constituted the great bulwark of liberty and would only be violated by Despotic regimes. But then in 1836, Virginia adopts this law, massive sweeping law goes on for, I think, 100 words and basically says something like that it’s a crime to argue that Whites don’t have a right to property in their Black slaves, and it’s a crime to inculcate resistance against slavery, and on and on and on. And these were sort of par for the course laws in most Southern states. And interestingly President Andrew Jackson tried to adopt a federal law, which would make it a crime to basically write Abolitionist treaties and send them to States that had slavery.

Jacob Mchangama: And in Congress, you had Senator Calhoun, I think of South Carolina, who argued that basically abolitionist ideas were violating the dignity and honor of Southerners. That it was basically a form of hate speech against Southerners to argue that slavery wasn’t evil. So, it is a very interesting and fascinating debate, of course, even though slavery was abolished. Now, before I should say that, I should say that abolitionists, none the least Frederick Douglass argued on the other hand that free speech was the most important weapon against slavery. So, Frederick Douglass said that five years of free speech in the South would abolish slavery. He said that free speech is a very precious right, especially for the oppressed. And in 1860, he organizes or he’s speaking at this abolitionist meeting in Boston, which is disrupted by these White Bostonians who don’t appreciate the abolitionist ideas, it might jeopardize their commercial interest in the South and jeopardize the very union.

Jacob Mchangama: And so he writes this very eloquent speech called plea for free speech in Boston, where he sets out arguments that are as relevant in 2022 as they were in 1860 of why free speech is a universal right and does not depend on the color of your skin or the size of your wallet. And I think if you ever question why free speech matters, go to Frederick Douglass plea for free speech in Boston, and I think it’d be difficult not to come away convinced.

Chelsea Follett: As long as we’re on this topic of free speech and its relationship to moral progress or regress, I think this is a good time to discuss what you call the Weimar fallacy, you tackle this argument at length, but there’s a common argument that more restrictions on free speech can prevent the rise of dictators, if there had been more restrictions on free speech, maybe that could have some argue prevented the rise of Adolf Hitler and the atrocities of Nazi Germany. So, can speech restrictions help prevent the rise of intolerance and the persecution of vulnerable people, is there anything to this argument?

Jacob Mchangama: Well, I don’t want to… Yes, you’re right, I mentioned Weimar fallacies, unfortunately not a term coined by me, its coined by Eric Heinze, a brilliant British professor, but I use it somewhat differently from him, I think. But here in Europe, all states, all democracies punish or prohibit hate speech of some forms. And the idea is very much that the horrors of the Second World War and culminating with the Holocaust necessitates that democracies crack down on totalitarian ideologies and those that argue for the systematic discrimination and dehumanization of minorities.

Jacob Mchangama: And that’s, of course, those are restrictions borne out of good intentions and the ethos of Never Again, which I very much share. But I argue that the history of the Weimar Republic does not support the thesis that if only democracies had cracked down harder on free speech, that would have taken care of everything. Now, I want to stress that I’m not arguing that you can explain the fall of the Weimar Republic and the emergence of the third Reich through the narrow lens of free speech and censorship. There are so many more things going on. German defeat in World War I, the Versailles treaty, the Wall Street crack, very limited experiences with democracy in Germany. The Russian revolution and so on and so on. So, these factors are all clearly very, very important.

Jacob Mchangama: But when you look at the Weimar Republic, by our standards, even European states that allow for free speech restrictions, that would not be constitutional in the US, I think some of the speech restrictions in the Weimar Republic are much more wide-ranging than would be allowed. So, for instance, a number of emergency laws were adopted, which allowed state governments in German states to administratively suspend newspapers for up to eight weeks, I think, if they spread false information or attack government institutions or public officials. The radio was quite limited, so it was mostly sort of pro-government voices and ideas. No Nazis, no Communists on the radio.

Jacob Mchangama: Adolf Hitler was banned from speaking in several countries, several states, German states. And of course, these restrictions also hit some of the Nazi newspapers, so Der Angriff, which was founded by Joseph Goebbels, the later propaganda minister. Goebbels proudly proclaimed Der Angriff the most frequently prohibited German newspaper. So, he used it basically as a propaganda tool, the crack down by the Weimar authorities. Julius Streicher who was the editor of Der Sturmer, the most viral and anti-Semitic newspaper ever, was sentenced on many occasions, convicted both for defamation but also for religious offense, because he published these vicious blood libels against Jews, and so he was sentenced to two months in prison, in 1921.

Jacob Mchangama: He was greeted by fans after his conviction. And less than a year later, the Germans, the Nazis saw a huge increase in votes in the federal elections, parliamentary elections including in Nuremberg the home city of Streicher where he was convicted. So, all this, to suggest that… No, I should say ultimately, the Nazis then used the emergency provisions in the Weimar constitution that was supposed to protect democracy, they used those to abolish democracy after the Reichstag fire. So, that to me, suggests that this idea of militant democracies, that democracies must be intolerant towards the intolerant does not stand up to scrutiny in the most present example of the Nazis. Now, I would say that instead, maybe the Weimar Republic, Adolf Hitler participated in a violent attempt to overthrow the government in 1923, but he was given a very lenient sentence and he was released early.

Jacob Mchangama: So, he should probably have been sentenced to life imprisonment and should have been sent to some prison far away and not in Munich, where he had a lot of support and his supporters would come and visit him, and he could communicate with everyone, and so on. And also, the Weimar Republic should have been more aggressive in confronting sort of armed thugs that ran around the streets, intimidating political opponents. I think that might have made a difference. But ultimately, my argument is just those who… In democracies, if we agree that free speech is an important fundamental right, then those who act in favour of limiting it, they should have the burden of proof. And I don’t think that burden of proof had been lifted when you look at it through the historical experiences of the Weimar Republic.

Chelsea Follett: And ultimately, you describe protecting the vulnerable from discrimination and protecting freedom of speech as mutually reinforcing, rather than mutually exclusive goals. Could you elaborate a bit on that?

Jacob Mchangama: Yeah. I think we already see that, you already see that with the argument of Frederick Douglass. You also see it in… When it comes to Jim Crow, for instance, so a lot of Southern states continued to have very restrictive, explicitly racist restrictions on free speech at a time… Both at a time where the First Amendment did not apply to the states, but also afterwards, even after the First Amendment was applied to the states through incorporation, through the 14th Amendment. They used formally neutral laws, but that were transparently used to target the Civil Rights Movement.

Jacob Mchangama: So, someone like Martin Luther King was imprisoned, arrested 29 times often for peaceful protests. John Lewis, the great congressman and Civil Rights hero, was arrested in Dallas for holding a sign which said, “One man, one vote.” So, that tells you a bit about Southern tolerance. And he of course explicitly, he said that, Without free speech and the First Amendment, the Civil Rights Movement would have been a bird without wings. So, I think that’s a very powerful testimony to the power of free speech, but you could also look at the rights of women. So, in 1917 at Lafayette square, outside the White House, you had a number of American suffragettes who were fighting, were demanding the right to vote, and they were burning an effigy of President Woodrow Wilson and they were arrested and several of them fined.

Jacob Mchangama: And so I was living in New York in 2018, I took my son to a museum, and when we exited the museum, there was a huge demonstration by tens of thousands, mostly women who were wearing pink pussy hats and protesting President Donald Trump in language that made me blush. And that would certainly have seen them arrested back in 1917, but on that day the NYPD was standing by to protect their First Amendment Rights to protest the most powerful politician in the land with very intemperate language and placards that were not very friendly to us. So, I think that’s a very powerful sign of the progress made through free speech.

Jacob Mchangama: It has empowered racial minorities, women and basically every other group that has been the subject of persecution. I think 94% of Americans today are acceptant of interracial marriages, in 1958 it was 4%. Now, so what has brought about that change, certainly not anyone being censored, certainly not any races being thrown in prison. In fact, throughout that period from 1958 to 2021, when the latest Gallup poll is from, free speech has only been strengthened, the constitutional protection thereof has only been strengthened.

Jacob Mchangama: You could say the same thing with gay marriage, same sex marriage, so I think 2021 Gallup Poll said, “70% acceptance in America, and even a majority of Republicans who were traditionally more conservative on social issues, now are in favor of same-sex marriage.” Again, not a single homophobe has been censored or thrown in prison for voicing bigoted opinions against the LGBT community.

Jacob Mchangama: So, that, to me, suggests that in fact, the exercise of free speech through activism, through writing, through you know popular culture, through appealing petitions and so on, is the real game changer when it comes to changing attitudes, to become more accepted and progressive when it comes to the rights, acceptance and tolerance of minorities.

Chelsea Follett: What do you view as the greatest threats to free speech today?

Jacob Mchangama: Yeah. So, I think even though from one point of view, we’re living in a golden age of free speech. So, free speech is constitutionally protected, it’s an International Human Rights norm and technology allows you to meet, to have an uncensored conversation between continents in real time. That would have been unimaginable to previous generations. But I would argue that we’re also living in a free speech recession, and I think one of the greatest dangers is that democracies are contributing to the free speech recession, especially in Europe, where laws are being adopted at a rapid pace limiting free speech.

Jacob Mchangama: So, just I think yesterday, so when at the time we’re talking, we’re living through the Ukraine crisis and the invasion by Russia. And the European Commission has said that it wants to ban Russian propaganda channels. The European Commission has also said that it wants to make hate speech an EU crime. So, certainly the European Commission is defining hate speech and propaganda and disinformation for 27 other member states. Now, and of course you know, when you’re in a conflict like the brutal invasion of Russia into Ukraine, you immediately sympathize with the idea that we want to limit the reach of Russian state sponsored propaganda.

Jacob Mchangama: But what are the long-term consequences of allowing the European Commission to centrally determine what is the truth and lies and propaganda and disinformation for 27 democratic states? I think that’s a very dangerous precedent. So, I think, of course, China is another very worrying example because it has basically reverse-engineered the digital space, which was supposed to consign censorship to the ashtray of history, and really used it as an extremely powerful tool to not only strengthen traditional censorship, but also use it to wholesale digital surveillance, which is likely to create a strong degree of self-censorship among the Chinese and also to use bots and so on to drown dissent online.

Jacob Mchangama: So, that’s another huge danger. And then ultimately, I think free speech thrives on a culture of free speech, so it thrives on the acceptance of you and me that the world is a better place if we accept that our neighbors, our colleagues, our compatriots, our spouses can have very different ideas than ours and our own and that we should be able to live with those differences and discuss them openly and come to compromises rather than try to impose orthodoxy on each others or ultimately fight it out. And if we abandon that idea, I think we’re in for a world that is much less free and democratic, tolerant and progressive.

Chelsea Follett: We do know that sometimes in the marketplace of ideas, regrettable ideas win out, whether that’s misinformation or baseless conspiracies or unjust prejudices or mistaken ideologies, to name a few examples. So, why do you believe that freedom of speech is nonetheless essential to human progress?

Jacob Mchangama: Yeah. I actually don’t think the marketplace of ideas is a very strong justification for free speech. Because as you rightly say, all kinds of crazy ideas can get a hold on when it comes to a political speech. It’s not necessarily about the right idea or who has the right political ideology, that depends on your perspective, and it’s very subjective. But I think that, from the overthrow of the Athenian democracy by [0:53:34.5] ____, you see very, very clearly that authoritarian governments, the very first thing that they will try to eradicate is free speech.

Jacob Mchangama: And they want to control the public sphere. And I think, again, if we look to the Ukraine conflict, look at the media in Russia, where people being arrested in the thousands for protesting the war. Russian state media engaging in propaganda distorted lies. Whereas actually I think the Ukrainian perspective has won out to a high degree, at least on sort of dominant platforms, and that does not necessarily mean that everything from the Ukrainian perspective is true. The fog of war is quite thick. But I think ultimately, if you believe in individual freedom, if you believe in tolerance, then free speech is a necessary pre-condition. Without that, those values are… Will necessarily or unavoidably erode.

Chelsea Follett: Thank you, this has been very enlightening. And so please check out, if you’re listening to this podcast or watching it, Jacob’s book, Free Speech: A History From Socrates To Social Media and his podcast and his other work. Thank you again so much for speaking with me. Jacob Mchangama: Thank you, Chelsea. It’s been a real pleasure.

Chelsea Follett is the managing editor of HumanProgress.org and a policy analyst in the Cato Institute’s Center for Global Liberty and Prosperity.

Jacob Mchangama is the founder and executive director of Justitia and the author of Free Speech: A History from Socrates to Social Media.