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Free Speech: An Eternal Struggle

“While Americans and other Westerners may be living in a golden age of free speech, there are still billions of people in the world who have yet to enjoy its blessings.”

We live in a golden age of free speech. Baruch Spinoza, Frederick Douglass, and other historical free speech champions would marvel if they were alive today. Across the planet, thanks to social media and other new communication technologies, millions of people can organize, discuss, debate, and share their thoughts and writings openly in real-time with no looming Inquisition, Star Chamber, or Committee of Public Safety. No one in Europe gets persecuted or burned at the stake over Catholic-Protestant doctrinal disputes.

In the United States, no government censor can stop the publication of media content—print or digital—through the use of prior restraint. African Americans descended from slaves are now active, influential citizens participating in all walks of life in the world’s most powerful liberal democracy. Even among other liberal democracies, the United States stands out as “exceptional” in protecting free speech and free expression thanks to a robust interpretation of the First Amendment.

Present constitutional case law protecting free speech and free expression is stronger than at any other point in American history. First Amendment litigator Ken White writes:

“For more than a generation, the United States Supreme Court has reliably protected unpopular speech from government sanction. The Court’s staunch defense of the First Amendment is remarkable because it has transcended political partisanship and upheld speech that offends everyone, including the powerful.

In overturning flag-burning laws, the Court protected (literally) incendiary speech that remains intolerable to many Americans. Years later, in upholding the right of Westboro Baptist Church to picket the funerals of servicemen with vile homophobic insults, the Court aggrieved both the left and the right, permitting violation of norms of veneration of the military and against hate speech. The Court has protected scatological and humiliating ridicule of public figures and overturned laws purporting to bar ‘disparaging’ or ‘immoral or scandalous’ trademarks, firmly establishing that offensive speech is free speech. 

Crucially, the Court has repeatedly rebuked demands that it creates new First Amendment exceptions based on the tastes of the moment. Instead, it has adhered to a select, narrowly defined list of historical exceptions, rejecting efforts to create a general ‘balancing test’ that would determine whether speech is protected by an ad hoc weighing of its value and harm. The Court’s defense of free speech is not perfect—students and public employees have seen some narrowing of rights—but it is unprecedented in American history, and it stands in sharp contrast to the Court’s halfhearted defense of Fourth, Fifth, and Sixth Amendment rights.”

Staying true to principles and continuing to expand the circle of freedom is an eternal battle that went on throughout history and continues to this day.

It is worth emphasizing that when compared to other liberal democracies, the United States Supreme Court has consistently refused to carve out a “hate speech” exception for speech doctrine and other protections covered under the First Amendment. To repeat: There is no hate speech exception to the First Amendment. Even as experts and laypersons debate whether Americans should follow international trends or cherish our exceptionalism, this is the current reality. Present-day Americans are indeed blessed to enjoy greater free speech protections, whether compared to their ancestors or people living in other countries.

But to paraphrase Charles Dickens, it is the best of times, and it is the worst of times. While Americans and other Westerners may be living in a golden age of free speech, there are still billions of people in the world who have yet to enjoy its blessings Democracy activists in China (and even Chinese students who study abroad), women in Iran, and dissidents in Russia still struggle for basic human rights against totalitarian regimes that forbid all dissent. In the West, controversies rage over free speech versus other values, how to tackle the spread of misinformation, and the role and responsibility of powerful tech companies as the very concept of the public square continues to evolve in the globalized, digitized 21st century.

As Jacob Mchangama recounts in his sweeping narrative Free Speech: A Global History from Socrates to Social Media, which was published last year, the battle for free speech—to speak, to write, and to think freely—is a perennial struggle that transcends nationality, ethnicity, political ideology, and time. This universal human longing for freedom goes against another very human emotion on the opposite end: the desire to control, suppress, and censor.

From antiquity to the Reformation to the age of social media, similar arguments for free speech were made—radical then and still radical today.

The ancient Athenians had two distinct but overlapping concepts of free speech: isegoria and parrhesia. The former, isegoria, was about equality of public civic speech, which was exercised in the assembly where all freeborn male citizens had a direct voice in debating and passing laws. The latter, parrhesia, was about completely uninhibited speech in all other spheres of life. From its very beginnings, there was a tension between egalitarian and elitist conceptions of free speech that would echo in future controversies. Should free speech be enjoyed only by an elite class, or does every individual have the right to think and speak freely? Should free speech be limited to matters that advance only the public good and social order, or is everything under the sun subject to scrutiny or ridicule, even for the sake of offense and shock?

For centuries, people in all lands—Greek and Roman statesmen, Muslim freethinkers, Reformation and Counter-Reformation theologians, European Enlightenment philosophersEnglish LevellersAmerican and French Revolutionariesabolitionistsfeminists20th century anti-colonial crusadersUnited Nations delegates, and many more—argued with words (and sometimes with swords) trying to settle on a definitive answer.

Mchangama’s history of free speech is intimately intertwined with the political, legal, and cultural contexts. One key theme—liberty versus power—played out across many different lands and eras. The champions of free speech, open inquiry, and freethought struggled against centralized power, whether embodied in an elite slave-owning class, a religious theocracy, an absolute monarchy, or a fascist or communist dictatorship. The desire for freedom clashed with the desire for domination. Until relatively recently, arbitrary rule and control tended to prevail for most of human history. Freedom was slowly won by inches, and even as it progressed, it was never fully complete.

Almost all the greatest free speech heroes and dissidents whether they were Benjamin Franklin, Martin Luther, or even John Milton had their blind spots or made “exceptions” for the groups or causes they did not like. In an astounding display of irony and hypocrisy, John Milton—author of Areopagitica, one of history’s most influential and impassioned philosophical pleas for free speech and free pressnever extended his tolerance toward Catholics and even served as government censor under Oliver Cromwell’s Commonwealth.

It almost goes without saying that most people, regardless of background, believed in liberty for me but not for thee. Mchangama is at his best with this nuanced account of history showing both the admirable and flawed aspects of human experience. If anything, it is a sober reminder that freedom must always be fought for, and it is always vulnerable to the darker and more seductive impulses of human nature. Staying true to principles and continuing to expand the circle of freedom is an eternal battle that went on throughout history and continues to this day.

We may be living in an age of unprecedented political freedom, but it would be incorrect to assume these liberties are permanent or to take them for granted. There is always a need to remain vigilant and active in promoting and advancing the cause of free speech and human liberty. With a resurgence of authoritarianism worldwide, friends of liberty still have much work to do.

The United States faces its own set of unique challenges. In regards to free speech, many Americans feel the basic state of national discourse is broken—both online and offline. Political polarization has reached record highs. Misinformation and disinformation are rampant across social media. People are trapped in echo chambers in endless arguments over basic facts. And last but not least, the very-real phenomenon of cancel culture continues to claim victims.

As Adam Kirsch wrote at The Wall Street Journal in 2020, “Today, Americans are less worried about government censorship than about navigating the unwritten rules of socially acceptable speech. Violating those rules doesn’t bring jail time, but the prospect of losing your reputation or your job has a chilling effect all on its own. And at a time of great social and technological change, staying on the right side of the line of permissible speech can be difficult.”

Last year, The New York Times editorial board finally admitted what many people of all political persuasions already know:

“For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned. This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.”

Some commentators continue to insist—exemplified in a popular cartoon—that there is no threat to free speech or violation of free speech because the federal government of the United States is not jailing, fining, or punishing individuals who speak out. From a strictly legal standpoint, it is true that the First Amendment applies only to the government. But this narrow view of free speech is both misguided and mistaken. Greg Lukianoff, the president of the Foundation for Individual Rights and Expression, has argued:

“The concept of freedom of speech is a bigger, older and more expansive idea than its particular application in the First Amendment. A belief in the importance of freedom of speech is what inspired the First Amendment; it’s what gave the First Amendment meaning, and what sustains it in the law. But a strong cultural commitment to freedom of speech is what maintains its practice in our institutions—from higher education, to reality TV, to pluralistic democracy itself. Freedom of speech includes small l liberal values that were once expressed in common American idioms like to each his own, everyone’s entitled to their opinion and it’s a free country.” (Emphasis original)

Many sources other than government censorship can indeed threaten free speech and dissident voices.

For starters, John Stuart Mill’s classic 1859 work On Liberty, arguably the most influential book on free speech in history, was not primarily about legal restrictions on free speech. Instead, Mill was concerned about the crushing societal pressure to conform or keep silent:

“Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.”

The “tyranny of the prevailing opinion” is often at odds with dissidents, reformers, and the powerless. In ultra-conservative religious societies, freethinkers fear for their lives if they offend prevailing native sentiment or orthodox beliefs, even if they are abroad. With or without their government’s tacit approval, Islamic terrorists have employed the “assassin’s veto” to silence (permanently if they can get away with it) or threaten ex-Muslim apostates and critics such as Ayaan Hirsi Ali and Salman Rushdie, as well as Westerners such as Dutch journalist Flemming Rose, the staff of Charlie Hebdo, and even a French schoolteacher for “blasphemy” and other perceived offenses against Islam and the prophet Muhammad. To this day, many of these surviving individuals—true heroes of free speech—still have to live their lives knowing there is a price on their heads.

Mchangama’s history of free speech makes it painstakingly clear that progress toward greater freedom of speech and religious freedom was intimately tied with the ability to question and doubt religious dogma:

“In most modern secular and liberal democracies, the freedom to choose one’s religion—or no religion at all—is taken for granted. None of the many houses of worship that are welcome to open their doors can compel me to enter and once I enter, I can freely leave for another or abandon religion altogether. But however natural it may feel today, the idea of having a choice in matters of religious belief has been the exception for much of human history.”

Our freedom of conscienceto think freely and to doubt—was won through a deep and long struggle against religious authority. It is not a coincidence that freedom of speech, freedom of religion, and freedom of conscience all go together like a seamless web, rightly recognized and protected by the First Amendment. Freethinkers from Galileo to Salman Rushdie have dared to defy orthodoxy and courageously labored to advance human knowledge, putting their own lives on the line against religious fundamentalists and authoritarians who would rather keep minds closed. We must not forget this struggle and thus perhaps lose what we have gained. In the words of Ayn Rand, “There is nothing to take a man’s freedom away from him, save other men. To be free, a man must be free of his brothers.”

As the sad lessons of history show, man has no shortage of means to shackle down the bodies and minds of his brothers—whether it is through a centralized governmental authority, religious dogma, or other primal displays of might makes right.

The American Republic—the first and only state in history founded on the natural rights of man—was a historical milestone in human freedom. Men were freed from arbitrary government authority—both secular and ecclesiastical—but the very last one, freedom from other men was yet to be fully realized. The contradictions were exposed to all in the nation’s brutal reality of slavery, which would go on to torment the conscience of many Americans up to the Civil War.

Free speech would again prove itself as a radical, transformative, and emancipatory tool as abolitionists fought both government and private censors. When Frederick Douglass delivered A Plea for Free Speech in Boston, he did not complain about the government shutting down his speech. Instead, his grievance was that the state failed to protect his speech from being silenced by a private mob of racist hecklers. Nevertheless, the founding principles of the United States were its saving grace and could not be explained away or suppressed by force, despite the many attempts by slaveholders and racists. The ideas of Douglass and President Abraham Lincoln eventually carried the day, and the circle of human freedom was extended once more through the abolishment of slavery.

But all those constitutional guarantees are not worth the paper they are written on because none of those societies have an underlying bedrock of cultural and social norms that normalize dissent or encourage people to challenge authority and push boundaries.

Despite the clear historical record, unfortunately many modern progressives and egalitarians seem to have lost sight of the fact that social progress and free speech went hand in hand. Former American Civil Liberties Union president Nadine Strossen reminds us that the very purpose of free speech is to give the marginalized an escape hatch from the status quo rather than to entrench political power:

“Every movement now considered ‘progressive’—abolition, women’s suffrage, gender equality, reproductive freedom, labor rights, social democracy, civil rights, opposition to war, LGBTQ+ rights—was at one time supported only by a minority, and viewed as dangerous or worse. Unsurprisingly, many of these movements only began to flourish and progress toward the previously unattainable goal of majority consensus after the Supreme Court started to strongly enforce the free speech guarantee (including the core viewpoint neutrality principle) in the second half of the 20th century. The lesson many on the left seem to have forgotten is that in a democracy, there is a constant danger that minority groups—whether defined by identity, ideology, or otherwise—will be subject to ‘the tyranny of the majority.’ The specific purpose of the Bill of Rights, including the First Amendment’s free speech guarantee, is to ensure that the majority cannot deny basic rights to any minority, no matter how small or unpopular. Powerful people and popular ideas don’t need First Amendment protections; marginalized people and unpopular ideas do.”

But the law alone cannot protect free speech. China, Russia, Cuba, Venezuela, and other totalitarian regimes all guarantee freedom of speech or expression in their constitutions (and assure even more lofty freedoms than do the United States Constitution and Bill of Rights). But all those constitutional guarantees are not worth the paper they are written on because none of those societies have an underlying bedrock of cultural and social norms that normalize dissent or encourage people to challenge authority and push boundaries. It is no surprise these countries are some of the worst human rights violators.

If legal and constitutional provisions are not backed up with a culture of tolerance and respect for freedom of expression and dissent, they are nothing more than empty promises, at best, and naked hypocrisy, at worst. For free speech truly to flourish, it must be widely respected, understood, and embraced by the population at large. 

It means teaching young people the importance of asking questions, the power of dissent, and the necessity of challenging prevailing sentiments. It means learning how to approach other ideas with a spirit of good faith, curiosity, and nuance. It means knowing when to reserve judgment and be slow to take offense. It means not shying away from difficult conversations but actively seeking them out—even if those conversations are uncomfortable for some. It means listening to those who disagree and giving the Devil his due. It means practicing an attitude of epistemic humility and welcoming the possibility of being wrong. It means defending the skeptic, the dissenter, the marginalized, and the outcast—and sometimes even the enemy. It means rejecting silencing tactics and standing firm in the face of bullying from the powerful. It means finding personal courage and rejecting the tyranny of silence. 

True free speech requires culture and people who understand, value, and internalize it as a moral and ethical principle.

Judge Learned Hand said it best:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”

A society’s laws do not change until its culture changes, especially in a pluralistic representative democracy with a vibrant civil society like the United States. Law is downstream from politics, and politics is downstream from culture. This crucial point is emphasized by principled liberals like Lukianoff and Mchangama who promote a culture of free speech. Free speech must be embraced as a cultural value, not simply the protections and limitations of the First Amendment. America’s robust free speech exceptionalism exists because of the cultural norms, habits of mind, and attitude of the American people.

The universal longing for freedom of expression and thought is a powerful sentiment that transcends all boundaries and constitutes a major part of the human experience. At its core, free speech is both a political and moral cause, and it needs to be fought for, defended, and extended in a constant and ever-evolving effort in every generation. Mchangama reminds us freedom of speech is not a mere abstract concept, but it is one that has been tested through millennia and that “for all its flaws, a world with less free speech will also be less tolerant, democratic, enlightened, innovative, free, and fun.”

We would be wise to remember our first freedom, celebrate it, exercise it, and work to ensure that it never fades away.

Aaron Tao is a technology professional working in Austin, Texas. He can be found on Twitter  @aarontao2

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