How the Right Abandoned Free Speech in Europe

The center-right Danish government, whose members defended the Mohammed cartoons, has passed more laws restricting free speech than any government since World War II, says free-speech podcaster Jacob Mchangama.

It's been a contentious day/week/month/year/decade/century for the exercise of free speech. What better time to check in with Danish activist Jacob Mchangama, host of the great new podcast Clear and Present Danger: A History of Free Speech (which Eugene Volokh recommended here)?

On this week's episode of The Fifth Column, which was taped last Friday, Mchangma, who got into the free speech business after the Danish cartoon controversies of 2005-2006, gave Kmele Foster, Michael C. Moynihan, and me a sobering update on the state of European law. "During the cartoon affair it was mostly the center-right in Denmark that sort of said, 'Free speech is absolute, we can't compromise on free speech, it doesn't matter whether you're a minority or majority,'" he told us. "But then, in the past couple of years, we've had a center-right government in Denmark that has passed more laws restricting free speech than at any other time since the Second World War. And all those laws are basically aimed at Muslims who engage in extreme speech."

It's a wide-ranging conversation, touching on the NFL national anthem controversy, hate speech crackdowns in England, publishing cowardice in the U.S., and the history of blasphemy. You can listen to the whole thing here:

Here's a partial transcript, mostly covering the European component of the conversation:

Kmele Foster: You are the host of A Clear and Present Danger: A History of Free Speech, which is a podcast that you're producing for FIRE for a limited engagement, a very good podcast. Could you give folks some context….what it is all about, and why you embarked on this journey to come across the pond to hang out here?

Jacob Mchangama: So I was born and raised in cozy, liberal, Denmark, where nothing much happens, and I'm very much a child of the cartoon affair. A Danish newspaper [Jyllands-Posten] published cartoons of the Prophet Mohammed, [and] the whole world went batshit crazy, or at least certain parts of the world. And I was living in a country where there'd been a long-established tradition of writers, cartoonists being able to poke fun at Christianity and religion in general. And then suddenly I see Danish flags are burning, I suddenly see the cultural elite and lots of politicians saying, "Yeah, well, free speech is important, but we shouldn't offend…." These were people who made a living—their whole livelihood depended on them being able to enjoy free speech. And suddenly they were saying, "Jyllands-Posten, as bad as the Islam is, there are extremists on both sides."…

So during the cartoon affair it was mostly the center-right in Denmark that sort of said, "Free speech is absolute, we can't compromise on free speech, it doesn't matter whether you're a minority or majority." And I was very much on board with that. But then, in the past couple of years, we've had a center-right government in Denmark that has passed more laws restricting free speech than at any other time since the Second World War. And all those laws are basically aimed at Muslims who engage in extreme speech.

And then suddenly all of those on the center-right who had been [saying] "free speech is absolute" during the cartoon crisis turned around and basically made the exact same arguments that the left had made with the cartoons. Only this time it came to, "Yeah, free speech is important, but we can't have people defending Sharia Law," or can't have imams saying this or that.

To me it was just depressing. And I found that discussions over free speech in Denmark—but also here in the States very much, basically across the board—were so captivated by tribalism, and very few arguments had much substance, including my own. A lot of what I wrote was very abstract things, and I thought: OK, if free speech is important, why not delve into the history? Why is it important? Is it important? Where does it come from? What have the red lines been throughout the ages? What can we learn from the past, if anything?

So I decided to stop and go all the way back to ancient Athens as the first episode, and right now I've worked my way into the Middle Ages. At some point I'll end up with artificial intelligence, I don't know….

Michael Moynihan: To be clear here—and this is an important thing that I think that probably no one knew at the time, and no one outside of Denmark knew—is that Denmark had blasphemy laws.

Mchangama: Yeah. I think when I retire one day, what I can be happy about saying is that my organization actually played a very crucial role in defeating the blasphemy law. There was a Muslim organization that reported Jyllands-Posten to the police, and the prosecutor decided not to press charges against it. But we had a blasphemy law, and it was actually revived.

So even though we've had a guy—and this says a lot about how much fear since the cartoon crisis has affected Denmark—so we've had a guy in the '90s, he burns the Bible on national TV. Then we have a guy in 2015, somewhere in the north of Denmark, who burns the Koran, puts it up on YouTube. Fifty people and their dogs watch it. And the guy ends up being charged for blasphemy.

And that's when the whole ball started rolling. This was too obvious, that it was basically the jihad is veto. Meaning that Islamists get to determine the red lines.

Foster: Threats of violence carry the day….

Mchangama: And what's interesting is we had artists who in the '60s and '70s made art that offended Christians—and at the time it was very much the left that sort of said "free speech!" These are the guys that would defend the Piss Christ here in the U.S. [They] said, "Yeah, you can make fun of Christianity, but don't go after the brown Muslims, because they're a minority."

And what got lost in all this is the countries that put pressure on Denmark and for Jyllands-Posten to apologize were Muslim-majority countries where you could go to jail if you offended the majority religion. So it was just sucked up into contemporary identity politics with very little understanding of the principles that were at stake.

For a long time freedom of speech had not really been top of the agenda in Denmark, because no one felt threatened; you could basically say anything. And then once we were put to the test, a very important segment of those who were supposed to be manning the barricades just…said, "Those who want to kill you might have a point. They might be a bit too extreme, but…"

Moynihan: Why do you think that happened?…There's obviously kind of a double standard here, isn't there?

Mchangama: There is a huge double standard. I think one thing has to do with a perception that Muslims are a vulnerable minority, or a visible minority, and therefore different rules should apply to them. You shouldn't gratuitously offend their feelings because you're using your power to punch down. I hate that expression, "punching down," but you saw the same arguments with Charlie Hebdo, the French magazine, where a number of journalists were butchered by jihadists—and by the way which had been one of the few publications that had supported Jyllands-Posten by publishing the cartoons of the Prophet Mohammed…

Matt Welch: And was firebombed as a result…

Mchangama: Yeah, and this is one of the interesting things from doing the History of Free Speech podcast, where I actually did an episode called "The Caliphate," where I go back in time. These were rules developed in Medieval Islam where people, apostates and blasphemers, could be killed for saying the wrong thing. This was not about protecting vulnerable people…[It was] a religious state executing people for transgressing the red lines.

And these are basically religious norms that people that happen to be a minority are trying to enforce in Western Europe. And I don't think it should matter what the color of your skin, your religion. If you try to enforce religious rules through violence, people have to stand together and say, "We are not going to accept that, this is completely beyond the pale, and it doesn't matter how much we disagree with whatever might provoke you, you've got to show solidarity."

Foster: But they didn't.

Mchangama: A lot of people, they didn't….

Welch: Is it fair to say that in the historical research that you're doing right now, that the vast majority of blasphemy laws are written by the power structure against the comparatively powerless minority populations? Is that a fair characterization of the history of blasphemy laws?

Mchangama: Very much so. The last episode I did was on heresy and the Inquisition, where you had the Catholic Church being very concerned about heterodox beliefs. So they start a Crusade, it doesn't help, and then they sent inquisitors out into Europe that questioned people, and ultimately it was a minority who were burned. That was ultimately what could happen if you were a heretic.

So very much, blasphemy laws have traditionally been an instrument to consolidate power…of secular rulers, but also of religious rulers. It's a completely ahistorical idea that blasphemy laws should protect minorities….There are now, I think, 13 Muslim-majority countries where you have formally the death penalty for blasphemy or apostasy.

The interesting thing is, if you go back in time to the 10th century, you actually had some really interesting free thinkers in Medieval Islam who basically rejected the authority of the Koran. You had a time where in the Abbasid Caliphate you translated almost all Greek signs, and philosophy, including Aristotle, and you had some of the most powerful intellectuals, philosophers, of the time. But some of that clearly has been lost, and some of the things that were written, I think in the ninth and the 10th century, would probably send you to jail today in Saudi Arabia or places like that. It's a real shame….

Moynihan: It's good to have Jacob here because of the differences between how we've used free speech in the United States and in Europe, where we kind of conflated these things for so long. This idea of hate crimes, which we do indeed have in the United States, and hate speech, which I'm increasingly hearing thrown around just lazily in America. In Europe that's an actual category, and most places in Europe, one can be prosecuted, one can be hauled in front of a court for an errant tweet, or an offensive tweet. We don't have that so much here.

My worry, and I'd love to hear Jacob on this, is that as we enter this era of hyper-identity politics, and these ideas which I hear from young people constantly and hear amongst colleagues, of "it's hate speech," which we don't have as an actual legal category—that we are lurching slightly more towards the European model on this….

Jacob, this is a different kind of world that you live in in Europe. The enlightened Europe, that we wish that we were more like in the United States, has kind of backwards laws on such things, don't you?…

Mchangama: I think there's been a shift in values in the West towards seeing free speech as a zero-sum game, meaning free speech is about winning….So free speech means my views, and they have to be protected absolutely, but those that threaten my worldview should not enjoy the same protection, maybe no protection at all. And I think it comes from the left, and it comes from the right as well….

So I think the NFL, because it's not a legal issue so much here, it becomes very much a cultural issue in the U.S. I think the NFL issue is the mirror image of conservatives crying about social justice warriors at universities and so on.

Foster: The James Damore firing at Google.

Mchangama: Yeah, exactly. And the NFL thing is precisely the same. The national anthem, you know, national symbols—that's something conservatives care deeply about, you cannot profane that. And so mentally, you're just able to convince yourself that this has nothing to do with free speech, because this is something special.

If you are on the left, you have different sincere beliefs that makes you able to justify why this restriction on free speech really is not a real restriction, or this is justified.

But in the U.K., there were at least 3,300 cases of people being detained and questioned for quote unquote, "grossly offensive posts on social media."…

Moynihan: [The argument that some people make], and I'm particularly interested in hearing Jacob talk about this if this has happened in the scope of free speech history, is that words are dangerous.

Foster: Words are violence.

Moynihan: They're violence, they can injure people….I asked somebody in [a recent Vice] piece, "Do you believe a joke can be harmful?" and then she says, "Yes, it can." What do you guys think about this?…

Welch: I am interested in the words-as-violence thing. Is that new?

Mchangama: It's a pervasive idea, I would say so. Take the trial of Socrates. So there are different accounts of why he was condemned to death, but one of them was that he didn't respect the religious traditions of the Athenians, the idea being that if you upset the gods they're going to punish you, and the Athenians had had a lot of bad shit happening to them, they've lost some wars, and so he was condemned.

And you see it very much in Christianity, you know, why did the Catholic Church go after heretics? It's not because the inquisitors were evil and they enjoyed burning people—they didn't at all. They actually really wanted to save people from being condemned, and in their view heretical ideas would spread, infect, and ultimately you would risk the punishment of God; God would inflict punishment upon you. And if you were convinced that wrong belief would incur the punishment of God, then you can understand why it would be the less evil to ultimately burn someone, because you're saving everyone else, you're saving society from being contaminated.

So in that sense, it's a very old idea that words have very serious consequences if they breach the fundamental values. Religion actually comes from the—OK, I'm getting really geeky here—but it comes from the Latin word religare, which means binding together. So religion binds society together, and so if you untie those bonds, everything is going to go to hell. Literally.

Welch: And maybe on the flip side, there's a piece by [John McWhorter] called "The Great Awokening"…that puts that kind of identity politics, that fervor, into a religious context.

Foster: Not the first time he's done that.

Welch: And so maybe that's what this is on some level.

Mchangama: Yeah, and I think it shows why we should leave that behind.

I think this is one of the crucial things about free speech that I think we have to address: Is free speech a threat to minorities, or is it a safeguard for minorities? And my thinking on it is very much that free speech is extremely important for minorities.

Take my own country, Denmark. So, like I said, the center-right used to be pro-free speech with the cartoons. But now…There was this documentary showing some imams instructing their congregations in really hardcore Shariah Law, and so we had politicians go out, and we have now a law which [says] that if you are explicitly condoning certain illegal acts as part of religious training, you can go to jail for three years. So if you're an imam, and you're standing in a mosque, and you say, "Islam allows polygamy, and it's a great thing," you could potentially go to prison for three years.

Muslims in Denmark, if they had in general said, "We really don't like the cartoons, but we understand that living in a secular democracy you have to put up with shit like that," then I don't think these laws would have returned. But when you're a minority, you are very vulnerable, you basically say, "OK, let's use the law against someone." But then when things turn, you're going to be the one that gets hit the hardest.

And so it's a really, really dangerous game for minorities to try and get laws to be used against speech that they don't like, because it is basically freedom of expression, freedom of religion, that allows minorities to live within secular democracies. Once you undermine that, you basically undermine your own freedom and safety and security. And I see that happening, and no one stands up.

Flemming Rose, who published the cartoons, he's also been very [supportive], but all of those that we stood together with during the cartoon crisis, all of them have basically—not all of them, but a lot of them—have drifted away. No one would stand up for fundamentalists, Islamists, on principle. It just couldn't be done. So we're looking around: Where are all our allies, you know?