Free Speech: A History from the 1930s to the Present

The first part of my review covered free-speech history from 500 BC to 1800 AD, and the second part covered 1800 to the 1920s. Here now are the final chapters which cover almost the last hundred years, in which we will see:

  • Chapter 10 warning against the temptation to fight intolerant people with your own intolerance, based on the examples of history.
  • Chapter 11 showing the strides made from the ’30s to the ’60s, resulting in a Golden Age of Free Speech lasting from the ’70s to the early ’00s.
  • Chapter 12 describing the Free Speech Recession that we’ve been in since the mid-’00s.
  • Chapter 13 asking what we do about the internet, and big-tech censorship that lies outside the purview of the First Amendment.

Chapters 10: The Totalitarian Temptation

In order to address the claim that “militant democracy” is necessary — that you have to fight intolerance with your own intolerance — Mchangama lets the regimes of Lenin, Stalin, Mussolini, and Hitler speak for themselves. When you endorse censorship, the time comes when your own tools will used against you. Eleanor Roosevelt was right, and Angela Merkel is wrong. The success of tyrants proves it.

The Weimar Fallacy

Mchangama covers all the tyrants of World War II, and I’ll take the last one he covers, Hitler, whose success owed in large part to the censoriousness of his foes. Although the Weimar Republic (1918-1933) was pretty good in upholding free speech, it did allow for censorship of cinema, public plays, and exhibitions (mostly for indecent material “to protect youth”), and — most fatally — it permitted the president to suspend free speech “if public safety and order was seriously disturbed or threatened”. That clause ended up destroying the democracy it intended to protect, making Hitler, in the end, quite happy.

The Weimar government has been called “an aesthetic educational dictatorship”. In the 20s it suspended the Nazi Party newspapers, and by 1925 most German states didn’t allow Hitler to speak publicly. The Weimar radio policy even began banning political parties and private businesses.

All of this gave Hitler not just the votes he needed (having been made a martyr), but the rhetorical comeback he needed to blast his opponents: if they were so supportive of equal rights and free speech, he asked, then why hadn’t they defended the Nazis right to speak impartially? Two months after he was sworn in as chancellor, Hitler spoke to the Reichstag:

“You should have recognized the beneficial power of criticism when we were in the opposition. Back then our press was forbidden and forbidden again; our assemblies were banned; we were not allowed to speak, and I was not allowed to speak — and that went on for years. And now you say criticism is beneficial!” (March, 1933)

Obviously Hitler never intended to allow political dissent or free speech in his regime. (He had made that crystal clear as early as 1920.) This rhetoric is simply, as Machnagama says, “the opportunistic, selective, and deeply hypocritical appeal to free speech when it serves one’s own agenda” — and a tactic we see today among the populist right. But the point is that this rhetoric was effective: Hitler appeared less authoritarian than he was — indeed he was cheered on by many — since he was absolutely correct in his criticisms of the government that silenced him.

The lesson is that democracies shouldn’t sacrifice free speech to counter organized hatred. They should do just the opposite, and not just for the practical reason explained by Mchangama (that countering intolerance with intolerance plays right into the tyrant’s hands), but for reasons of integrity: it’s the right thing to do regardless, to rise above your enemy and be better than that. It’s precisely what the Supreme Court did in the ’60s, as we’ll see below, in Brandenburg v. Ohio.

Chapter 11: The Age of Human Rights

Back in chapter 9 we saw that after being rendered a dead letter for so long, the First Amendment was resurrected after World War I, thanks largely to two things: the crusading efforts of the newly formed American Civil Liberties Union (ACLU), and President Warren Harding’s appointments of four liberty conscious justices during his term (William Howard Taft in 1921, Pierce Butler and George Sutherland in 1922, and Edward Terry Sanford in 1923). The result (in 1925) was reinforcement of the First Amendment’s provisions — freedom of speech and the press — but now on the state level in addition to the federal. And throughout the ’30s were more court rulings that upheld the First Amendment.

After the second World War, the United Nations expanded freedoms for the world — including free speech and thought. The landmark Universal Declaration of Human Rights (1948) protects freedom of speech and opinion in Article 19, but it’s a miracle that article was accepted, since most European democracies had exceptions for free speech (especially hate speech). It’s only because Britain backed America’s uncompromising position that Article 19 endorsed free speech with no strings attached.

That wasn’t the end though. In 1950 the Soviets pushed for a prohibition banning any advocacy of hatred — whether that hatred incited to violence or not. Eleanor Roosevelt (the U.S. delegate) warned, quite rightly, that the Soviet proposal was dangerous since

“any criticism of public or religious authorities might all too easily be described as incitement to hatred and consequently prohibited. It is equally difficult to differentiate between the various shades of feeling ranging from hatred to ill-feeling and mere dislike.”

Eleanor Roosevelt may as well have been looking into the post-9/11 era, where today any criticism of the doctrine of Islam and its leaders are considered to be hateful, when in fact they are not remotely hateful. Her writings for the UDHR should be required reading for wokes who believe that banning hate speech is a wise or practical idea.

Unfortunately Roosevelt’s wisdom didn’t prevail. As the United Nations worked on a the International Covenant on Civil and Political Rights (IICPR) (which would be passed in 1966), the votes required a provision against hate speech (in Article 20). 52 countries were in favor of the position, 19 against, and 12 abstained. The 19 who were against included almost all of the western liberal democracies. They feared — quite rightly — that outlawing hate speech would lead to authoritarian abuse, where the people whom the article intended to protect would become its victims… and those fears, as Mchangama’s book shows, were absolutely confirmed.

Back at home

America continued to hammer out more progress in the ’60s, and it’s only because of free speech that the Civil Rights Act was a success (wokes, take heed).

There were two landmark Supreme Court rulings during this period, the first being New York Times Co. v. Sullivan (1964). The newspaper had run an ad for supporters of Martin Luther King Jr. that criticized the police in Montgomery, Alabama, for their mistreatment of civil rights protesters. The ad was filled with factual inaccuracies (the number of times King had been arrested during the protests, what song the protesters had sung, etc), and based on the inaccuracies, the Montgomery police commissioner sued the Times and was awarded $500,000 for defamation. But the Supreme Court overruled that, saying that defamation required “actual malice”, and even more importantly that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Mchanagama says this was a landmark ruling for “finally decapitating the zombie concept of seditious libel”, which had for centuries been aimed at critics of any government. New York Times Co. v. Sullivan fulfilled James Madison’s vision and what he had intended in drafting the Constitution.

The other landmark case was Brandenburg v. Ohio (1969), in which a Ku Klux Klan leader (Clarence Brandenburg) led a rally that was filmed, showing several men in robes and hoods, some carrying firearms, others burning a cross and making speeches about “revengeance” against “niggers” and “Jews”. They announced plans for a march on Congress and called for the forced expulsion of African Americans to Africa and Jewish Americans to Israel. Brandenburg was charged with advocating violence, but the Court overruled that, on grounds that the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. Based on this precedent, in 1977 the Supreme Court also upheld the right of American neo-Nazis to march in Skokie Illinois.

It’s worth underscoring, as Mchangama does, how the left of today differs radically from the left of the ’60s. Justice Thurgood Marshall was the first African American to sit on the Supreme Court (from 1967-1991), and he concurred in both the Ohio and Illinois cases — that the KKK had the right to do as they were doing, and the neo-Nazis just the same. As a liberal minority, Marshall might have been expected to vote the other way, but he believed adamantly that “liberty and equality, properly understood, complemented each other”. Which is common sense, in my opinion, but in the 21st century “liberty” has become a cuss word set in opposition, not in complement, to social justice.

Chapter 12: The Free Speech Recession

According to Mchangama, the late ’70s to the early ’00s were a Golden Age of Free Speech, as democracy continually triumphed over the globe — in places in South America, South Africa, Eastern Europe, and Asia. Between 1979 to 2003, for example, the number of free countries in the world went from 32% to 46%, and the number of countries with press freedom went from 25% to 41%.

Since the mid-’00s, however, there has been a dramatic Free Speech Recession. In 2003, 41% of countries had a free press. By 2016, only 31% did. Media censorship has escalated, in print and on the web. Many of the seeds for this recession were planted on 9/11, and it was certainly in full swing by 2005, with the publication of the Danish cartoons. They satirized Muhammad — and the world lost its mind.

Eleanor Roosevelt’s Prophecy: The Conflation of Hate Speech and Blasphemy

She was right all along. In chapter 11 we saw her warning at the United Nations: that if hate speech prohibitions were codified into law, “any criticism of public or religious authorities might all too easily be described as incitement to hatred and consequently prohibited”. The UN paid her no mind, and throughout the ’00s — every year, up to 2010 — passed resolution after resolution against defaming religion.

Since then, western intellectuals and leftists have mind-bogglingly jumped on the bandwagon, effectively allying themselves with Islamists. The Islamist says that banning blasphemy is morally right and should be followed; the western leftist says that it’s morally wrong but should be followed. Both positions yield the same outcome — those cartoons should not have been drawn — and they both decry free expression as an evil. Few could have predicted this stunning moral backwardness (aside from the likes of Eleanor Roosevelt), and things have only gotten worse since the Danish cartoons and Charlie Hebdo murders.

The Presidency of Donald Trump

Mchangama notes how the consensus around free speech as a secular article of faith seemed to break down especially during Donald Trump’s presidency, “as hyperpartisan political tribalism became ever more unforgiving and heterodoxy was treated as heresy”. The woke movement began two years before Trump’s election, and indeed the wokes did much to drive voters into the arms of this demagogue, who in turn fueled a populist right movement that fanned the woke flames.

It’s all still fresh in our minds. In May 2020 protests erupted everywhere in America over George Floyd. Millions took the streets under the “Black Lives Matter” banner. But as Mchangama says, it was very unlike the Civil Rights movement of the ’60s, whose activists saw free speech as complementary with justice and equality. The “Black Lives Matter” movement sees free speech as a threat to justice and equality. The wokes make a habit of deplatforming people whose opinions don’t toe the woke line, especially in academia. Mchangama captures the left-wing atmosphere of our time:

“Cancel culture migrated from campuses to media and cultural institutions; organized attempts to punish — rather than vocally criticize — specific viewpoints, through calling for people to be fired or disciplined, multiplied. So highly charged was the question of race that the mere mention or discussion of certain words, regardless of intent, could lead to serious consequences. More than a fifth of the 478 colleges and universities surveyed in 2020 had at least one policy that both clearly and substantially restricts freedom of speech. An alarming 60% of surveyed students held back opinions because of how students, a professor, or the administration would respond. Among liberal students, 13% thought violence to stop a speech or event on campus was either always or sometimes acceptable, while 60% thought it was always or sometimes acceptable to shout down a speaker with opposing views.”

In this repressive atmosphere, Trump played the role of a blowtorch. He attacked news outlets as “enemies of the people”, invoking the rhetoric of Maximilien Robespierre (of the French Revolution), not to mention Lenin, Stalin, Hitler, and Mao. He sued media outlets for defamation, and vowed to enact stricter libel laws. He even threatened punishments for burning the American flag. He wasn’t successful in any of this, but he was taking a giant shit on the First Amendment — and he made quite an impact on his followers. According to Mchangama, 44% of Republicans in 2018 agreed that the president should have the power to close down media outlets for “bad behavior” and 48% of Republicans considered the media the “enemies of the people”.

What does this all mean? Simple. The Free Speech Recession we’re currently in should raise serious questions about the viability of free expression in the United States. The thesis of this book is that free speech culture is as important — more important, actually — than free speech laws per se. The First Amendment is one of the best laws ever established, but it doesn’t defend itself. All it takes are five Supreme Court justices to decide that it’s obsolete, and out it goes. As Machangama notes, citing Greg Lukianoff, “Free speech culture is what informs the First Amendment today, and it is what will decide if our current free speech protections will survive into the future.”

Chapter 13: The Internet and the Future of Free Speech

Mchangama goes out with a bang in his final chapter, which details the impact social media has had on perceptions of free speech. The power wielded by corporate giants like Facebook, Twitter and YouTube, has become absurd, as they — through their “Terms of Service” — ban more and more categories of speech:

“Facebook deleted 26.9 million pieces of content for violating its Community Standards on ‘hate speech’ in the last quarter of 2020. That’s nearly seventeen times the 1.6 million instances of deleted ‘hate speech’ in the last quarter of 2017. Twitter and YouTube also removed record levels of content in 2019 and 2020, respectively. No government in history has ever been able to exert such extensive control over what is being said, read, and shared by so many people across the world and in real time.”

Obviously, corporation censorship doesn’t fall within the First Amendment’s scope, and nor should it. That doesn’t mean big-tech censorship should be acceptable. Mchangama is right that it’s hard to reconcile a free speech culture with huge, centralized, corporate (and algorithmically driven) social media platforms acting as the gatekeepers of global parrhesia. John Stuart Mill feared society’s tendencies to impose conformity apart from the government, and George Orwell also warned that “unwelcome ideas can be silenced, and inconvenient facts kept dark, without the need for any official ban”.

For myself, I like the solution of continuing to allow corporations to censor as they desire, but only if they agree to be stripped of their legal immunities, so that they can be held liable for what is posted on their platforms. (It would solve the problem at once: no corporation would agree to that, since they would go bankrupt within a week.) Mchnagama mentions other alternatives, such as using antitrust laws to break up the concentration of power in big-tech platforms, without restricting the limits of user content, thus creating a more decentralized social media system.


All the reviews are right: this book is a damn near flawless history of free speech that everyone should read. I can nitpick a few things, but they’re trivial within the scope of the entire project. And despite my lengthy coverage, there’s a lot in the book I didn’t cover; there’s so much ground. So read it for yourself. If the lessons of history don’t convince you that opinions shouldn’t be silenced, no matter how dangerous, then there’s probably nothing that will.

Rating: 5 stars out of 5.

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