The Volokh Conspiracy

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Has America Given Up on Free Speech?

A review of Mchangama's "Free Speech."


Most people have at least some family and friends with whom they disagree about religion, politics, and other neuralgic topics. We maintain relationships with these people because some commonality encourages us to look past our disagreements with them–because we have some basis for trusting them and their good will towards us, notwithstanding our differences. We may even engage now and then with these friends and family in a reasonably civil way (though, if surveys are correct, more and more Americans drop friends and family members because of politics, mostly liberals dropping conservatives, apparently, rather than the other way around).

It would be silly to expect the level of trust we have for friends and family to extend to society at large. Yet, social trust has a very important role in public discourse. It allows us to engage our fellow citizens without expecting the worst of them, without thinking they are out to get us–in short, without personalizing debate in a way that makes everyone defensive and angry.

In a review of Jacob Mchangama's new book, Free Speech, at the Law & Liberty site today, I argue that this social trust has frayed greatly, and that Americans' problems with free speech result more from social breakdown than from a failed commitment to abstract ideas about expression. Here's an excerpt:

It is a striking feature of American life in the first quarter of the 21st century that we have somehow created a culture in which everyone feels aggrieved. This is especially true when it comes to free speech. Both conservatives and progressives believe their opponents are out to silence them—not just beat them in debates and prevail against them in elections, but intimidate them, put them on mute permanently, eliminate any possibility of resistance. Many on each side see the other as not simply wrong, but ill-motivated and dangerous, an existential threat to be defeated before it is too late.

This state of affairs is more the norm in American history than we care to admit. Perhaps because we see ourselves in providential terms—"the last best hope of earth," as Lincoln said—Americans always have been sensitive to threats our democracy faces and often have worried about enemies within spreading "disinformation." Eras of Good Feeling occur relatively rarely. Even so, the level of recrimination just now seems quite high, and many Americans apparently believe we must silence our opponents before they succeed in silencing us.

In Free Speech: A History from Socrates to Social Media, Jacob Mchangama maintains that a renewed commitment to free expression can help us through these perfervid times. Mchangama, a lawyer and the founder of Justitia, a human-rights organization in Denmark, has written a programmatic history that "connect[s] past speech controversies with the most pressing contemporary ones." Today's debates about free expression recapitulate those of long ago, he believes, and just as our ancestors did, we must defend the right to speak against those who would take it away.

To write a comprehensive history like this one is an ambitious undertaking, and Free Speech is a mixed success. Mchangama writes engagingly and has done his research. The chapters on the Internet and social media are especially good. But even at 500 pages, a history that spans thousands of years and many civilizations is bound to be a bit superficial at times. Moreover, as he himself recognizes, tolerance for others' speech depends as much on culture as it does on law—and in today's polarized, distrustful America, we are less and less likely to give our opponents the benefit of the doubt and let them have their say even if the law permits it.

You can read the whole essay here.