The Freeman: The Future of Free Speech

By Katrina Gulliver

Last week, I had the great pleasure of welcoming to Atlanta Jacob Mchangama, who came to talk to me about his book. We had a standing-room-only crowd of Freeman readers as I asked him what he thought about the past—and future—of free speech. (The conversation below has been edited for length.)

One of the first things I wanted to talk to you about is, in the United States, there’s the First Amendment. People think that means they have free speech, but it’s also one about which there are often misconceptions. Many of you have probably heard someone say, “You can’t shout, ‘Fire!’ in a crowded theater,” and that’s usually a widely held belief that that is somehow illegal, punishable. Why do you suppose it is that people have these ideas about what restrictions exist that actually don’t?

The First Amendment today provides the strongest constitutional protection of political speech of any country anywhere in the world. You can say things in this country that will land you in legal trouble in all other democracies. So that sets the US apart. That has not always been the case. If you go back a century, a bit more than a century, the area around American involvement in World War I, you would go to prison if you advocated against the draft, if you advocated against American involvement in World War I. In one of those cases, it was a number of radical pacifists who distributed pamphlets that argued that the draft was unconstitutional. And so there was a Supreme Court Justice called Oliver Wendell Holmes, who said that’s not a problem; these people can certainly be sent to jail for 10 years for saying that the draft is unconstitutional. And then he wrote this infamous line that you know: free speech does not protect you from falsely shouting, “Fire!” in a crowded theater. That has become a shorthand ever since. Any time anyone feels that something should not be protected, they say, “Well, you can’t shout, ‘Fire!’ in a crowded theater,” completely missing two things: first of all, that he talks about falsely shouting, “Fire!” in a crowded theater, but also that this opinion is no longer the law of the land in the United States has been replaced by a much stronger constitutional protection, and it was used to restrict speech that I hope all of us here today, regardless of what we might feel about any given topic, is core protected political speech that should never be punishable by the government.

I often hear people say, “Hate speech isn’t free speech.” That’s another widely held misconception, and I really appreciate that in this book, you do something to address some of these misconceptions and really break down what is the truth of the legal status currently in the United States. But also you address, to some degree, what the situation is in other countries. You discuss at one point the Arab Spring, and how particularly Western organizations were so keen to help protesters get their voice out. I saw people at the time sharing VPN addresses, trying to help people get connected to the Internet, that this was seen as this great thing, to let these protesters get their voices heard, help them overthrow tyrants. And yet I wonder at the same time if this is a bit of a kind of paradox that we’re celebrating free speech for those people over there, while at the same time, but closer to home, maybe, maybe not so much. What do you think?

I think that’s exactly right. There was a long period where in the West, in open democracies, we saw free speech as a competitive advantage against authoritarian states. We’d seen from the ’70s up until the early 2000s how freedom and democracy advanced to all continents. That was the end of the Cold War, end of apartheid. Democracy spread in Latin America, Sub-Saharan Africa, and free speech was really central to that. If you look at someone like Václav Havel, the famous Czechoslovakian dissident and first democratically elected president of Czechoslovakia, no longer a single country: in 1990, he was invited to Congress, and he was celebrated. He gave this famous speech where he said [paraphrasing], “Four months ago, I was imprisoned by the most conservative communist regime in Europe, but today, I stand in front of you as the democratically elected president of a country with full freedom of speech.”

So that free speech was really essential to a lot of dissidents around the world. Then in the 1990s, you have the Internet, and this is the peak moment in sort of techno-optimistic ideas in the West, because at that point [it seems] well, authoritarianism and censorship are essentially dead. There will never, ever be a period of time again where any authoritarian government can restrict people from sharing ideas across borders, and thereby it will be impossible to reimpose the types of authoritarian regimes that we have just defeated around the world.

That turned out to be rather too optimistic a take. A good example of it was Bill Clinton in 2000, when he was paving the way for China to join the World Trade Organization, and people were saying, “Well, in China, they’re trying to censor the Internet.” And he said, “Good luck. That’s sort of like trying to nail Jell-O to the wall,” intimating that it would be impossible for China to censor the Internet.

As we now know, China is very, very good at censoring the Internet, and weaponizing technologies, to reverse-engineer the freedom promise of technology to supercharge surveillance and censorship. And I think it’s a huge shift that came after the Arab Spring. It came in 2016: Donald Trump wins the US presidential election, and very quickly this narrative develops that it is Russian disinformation that is being spread on social media.

[According to this view,] social media were the good guys during the Arab Spring, but now they’ve brought into power Donald Trump, and they were also responsible for Brexit. And therefore now social media is bad, and therefore we need some kind of top-down control.

That diagnosis, I think, is empirically wrong. Whether you’re in favor or not of Donald Trump, I don’t think you can credit his 2016 election to disinformation on social media. The Russians certainly tried to interfere. They did spread some disinformation, but it did not swing the votes of Americans who just were not very happy with the status quo.

Read More