The Rational Pessimist

(A shortened version of my 9/30 Albany Library book talk)

This 2022 book, Free Speech, by Jacob Mchangama, incisively chronicles freedom of speech and the press in various places and times, analyzing the issues raised, which can be tangled.

Mchangama’s central thrust is that throughout history, restrictions upon freedom of expression have been justified as supposedly necessary to serve some public interest. But the downsides always outweigh any putative benefits. Always make a society worse off.

Freedom of speech is a two-sided coin. Let’s start with basic social contract theory. We surrender some of our liberties to government, in exchange for its protecting us against harm by others. But why surrender your freedom of expression? Some might argue it prevents some harm, like undermining social stability, for example, or religion’s moral verities. But that’s imposing their judgments upon you. What gives them that right?

The other side of the coin is the societal benefit of a free and open exchange of information and opinions and ideas. Some may be nasty stuff. But as Jefferson said, the remedy for bad speech is better speech. And meantime free speech, as this book stresses again and again, is the bulwark for a free and democratic society. Governments cannot be accountable if citizens are denied access to information and advocacy. The author quotes Gandhi that “freedom of opinion and association are the lungs absolutely necessary to breathe the oxygen of liberty.”

A key concept in the history here has gone under the rubric of seditious libel. A kind of catch-all that means anything spoken or published that threatens any sort of harm to society that its governing authority wants to suppress, to protect the public, but often actually to protect their own authority.

So here’s a quote: “It must be forbidden to publish papers which do not promote the national welfare.” Spoken in 1920 by a 31-year-old German political figure named Hitler. Later, in Mein Kampf, he wrote that freedom of the press and of opinion had “allowed poison . . . to enter the national bloodstream and infect public life.” Thus he called the press “enemies of the people,” a phrase that would be repeated verbatim by a later political figure in America.

Defenders of Germany’s previous liberal democratic Weimar Republic saw its enemies like Hitler spreading their own poison. This they did try to suppress, but not as ruthlessly as their Nazi successors. Who used the Reichstag fire as a pretext to crush all dissent. A March 1933 law literally outlawed “jokes” derogatory toward the regime.

Meantime the attempts to silence Nazis had been used by the Nazis themselves as positive propaganda tools. This the author calls an “opportunistic, selective, and deeply hypocritical appeal to free speech only when it serves one’s own agenda — still a familiar tactic among right wing populists today.” The author calls this “Milton’s curse,” after the poet John Milton — the selective defense of free speech for oneself while denying it to others.

Another trope is “fake news” — false reporting intended to deceive the public. A line which may of course itself be fake. Regularly invoked to justify restricting press freedom. Many authoritarian regimes have laws against “fake news” which they use to suppress real news.

Trump was once asked by journalist Lesley Stahl why he bangs on about “fake news.” He candidly replied — so that when bad things about him are reported, people won’t believe them.

A key point here is the credibility of journalism and how people are to get trustworthy information. Many Americans seem very messed up on that score. Rejecting mainstream media like PBS, NPR, CNN, while swallowing garbage put out by the sketchiest of sources, like Alex Jones.

Now, what does “censorship” mean? Running through the history here is the distinction between prior restraint — stopping something from being published — and punishing it afterwards. The latter defended as not actually suppressing speech. Because you can say what you like, as long as you’re willing to face punishment.

We’ve seen this even in the United States. The First Amendment says Congress shall make no law abridging freedom of speech or of the press; in 1798 Congress made exactly such a law, the Sedition Act, criminalizing any speech the government didn’t like. The old “seditious libel” concept. Many newspaper editors, and at least one Congressman, were jailed for criticizing the government. And this was defended as not violating the First Amendment because anyone could still say or publish anything, without prior restraint.

When it comes to suppressing free speech, surveillance is a key element. When newspapers or broadcasters criticize a regime, that’s open and public, but what about in our private lives and interactions? The book discusses how the Soviet Stalinist regime, and Germany’s Nazis, built webs of informers, encouraging neighbors and even people’s own children to report disloyalty. In Orwell’s 1984, Big Brother was watching you through telescreens. Surveillance technology has come a long way since then, notably in China, which pervasively monitors people, part of a “social credit” system where everyone gets a loyalty rating, and low scorers are punished.

A big problem area is religion, and the notion of blasphemy. Legions of Europeans, like Giordano Bruno, were burned at the stake for ideas inconsistent with prevailing religion. Many Muslim nations even today make blasphemy or apostasy — changing one’s religion — a death penalty offense. And we’ve seen vigilante mobs enforce that too.

Recall here the 2005 Danish cartoon affair, triggered by newspaper cartoons mocking the prophet Mohammad, leading to violent demonstrations in many Muslim countries. Also mocking the prophet was the French satirical magazine Charlie Hebdo, which suffered a 2015 murderous attack by Muslim militants. This provoked an outpouring of support for the concept of free expression, yet also a lot of verbiage, especially from the political left, essentially saying the magazine had it coming, because it had abused freedom of speech and incited intolerance.

Meantime for decades the Organization of Islamic Cooperation has sought to insulate Islam against any sort of critical debate, calling it all hate speech. In 2023, the OIC finally got the UN Human Rights Council to adopt this formulation, as have many European nations. Denmark had abolished its own ancient law against blasphemy in 2017, only to pass a new one in 2023, criminalizing Koran burnings and the like.

Here in the U.S., we’ve seen a “woke” cancel culture intolerant of any opposing advocacy. Once again Milton’s curse — free speech for them only. Oblivious that they were fashioning a two-edged sword that could be used against them, deeming impermissible their own advocacy — which Trump has labeled “treason, sedition, insurrection.”

This is all unfolding in our era of the internet and social media, creating whole new realms for free speech controversy. Platforms have been faulted for insufficient vigilance against disinformation and incitement of hatreds. While simultaneously being faulted for acting as censors — like when the President was banned from Facebook and Twitter. Was that right or wrong, good or bad? It was criticized by Alexei Navalny!

At work here is what the author calls “elite panic,” prompting ever changing content restrictions by internet platforms, to block, say, hate speech, disinformation, terrorism, election interference, anti-vax views, whatever. All this the author considers patronizing toward users who are presumed incapable of vetting content for themselves. He also suggests it’s anyway impossible for a network open to billions to suppress “organized hatred, lies, malignant propaganda, and divisive rhetoric.” And that the cure is worse than the disease.

There’s the perennial problem of how hard-and-fast standards can be fashioned and applied in the messy real world. Who decides what hate speech is, what facts are true or false? The author talks of a “seemingly chaotic and incoherent approach to content moderation . . . mostly based on ad hoc damage control following endless media controversies,” producing “poorly conceptualized rules and practices that spawn a host of unintended consequences.” Recall the line, one man’s terrorist is another’s freedom fighter.

Actually, the internet at first seemed to render obsolete the whole notion of censorship. It was a key factor in the 2011 Arab Spring revolutions, organized largely online. But autocrats found ways to fight back, including use of a more primitive technology — guns. And China in particular has perfected the art of preventing the internet from being, well, the internet.

So as the book chronicles, in recent decades there’s been a great free speech recession. Part of a democratic recession more broadly, as autocrats have indeed grown more empowered. Speech suppression has become truly Orwellian in Russia and China particularly, but others are following down that path, notably Turkey, Hungary, and India.

Let me return to the idea of restricting speech to prevent harm. Actually we must realize that no individual right is absolute, but can be subordinated to a broader public interest. The classic example is falsely “shouting ‘fire’ in a crowded theater.” And libel is unlawful. And so on. So we always strike a balance between liberty and harm. In striking that balance, America’s First Amendment culture appropriately requires a high bar before limiting free speech. But many modern European nations lack that guiding star, taking an unduly broad view of what constitutes harm here.

They’re especially tangled up over the concept of hate speech. And many often more broadly consider offensiveness harmful, making it a punishable crime. Harking back again to the old idea of “seditious libel.” Mirroring some U.S. campuses, striving to keep students “safe” against the “harm” of words they might find disconcerting.

And by the way, while such restrictions might seem desirable to protect your standard victims of hate speech, it can work both ways. In France in 2016 a leader of an LGBTQ rights group was convicted and fined for calling the head of an opposing group a “homophobe.”

I would suggest that freedom from being offended is not a fundamental human right. If you want the benefits of living in a free society, you must accept being offended sometimes by what others say. And even if there were some right not to be offended, surely that’s trumped by a right to voice an opinion.

But some European countries have even enacted special prohibitions against nastiness toward public officials. Yet holding them accountable to voters is particularly essential to democracy. America recognizes this — under the 1964 Times v. Sullivan Supreme Court decision, rather than giving public officials special protections, what’s especially protected is criticism of them, disallowable only under extreme circumstances. In contrast, under Germany’s misconceived law, Robert Habeck, recently vice-chancellor, filed 800 cases against citizens who criticized him. One for calling him a “professional idiot.” In 1990 around 80% of Germans said they felt able to freely express opinions; now it’s less than half.

Laws against “insulting the leader” are a staple of authoritarian regimes, used to persecute inconvenient people. The old version was “Lèse-majesté” — applicable for monarchs. Thailand applies just such a law ferociously. One dare not say a word construable as negative about the King, who is not an admirable person.

Then there’s Great Britain, enacting a succession of laws giving authorities wide powers to clamp down on anything deemed offensive. Whose definition is a vague mush. Effectively handing much power to local policemen, who monitor the internet looking for people to bust. The Economist recently wrote of a couple arrested for online comments critical of their daughter’s school.

And while Vice President Vance lectured Europeans about freedom of speech, here in America the regime doesn’t think non-citizens have any free speech rights; trying to deport people for expressions of opinion. Columbia University revoked degrees awarded to 70 students because they participated in pro-Palestinian protests. The President intimidates news outlets with lawsuits. The Department of Justice become the Department of Vengeance. The Defense Secretary bars credentialed journalists from reporting anything he doesn’t want reported. Stephen Colbert’s program cancelled because he offended Trump. His regime screams anti-semitism as a cudgel against U.S. universities, and requires special protections for Jewish students, while outlawing DEI for other minorities, and while anti-semitism runs rampant in the regime’s own ranks.

Now they’re exploiting the Charlie Kirk murder as their Reichstag fire, a pretext to really go after their enemies. Attorney General Pam Bondi declared they’ll crack down on “hate speech.” Elise Stefanik urged investigating school employees’ social media for “inappropriate or offensive” posts about the shooting. Who judges that? Many have in fact been fired. Jimmy Kimmel was cancelled for saying basically what I’ve just said. Trump’s FCC chairman says they’ll investigate all networks, with their licenses threatened, for political transgressions. All networks except Fox.

Yet, since forever, America’s right has complained of censorship; and Trump campaigned promising restoration of free speech. Something Kirk himself was a vocal advocate for, insisting the First Amendment protects even hate speech. But when Trump and MAGA people decry hate speech and political violence, it’s the pot calling the kettle black. Remember January 6, and the condoning pardons? And following Kirk’s shooting, one especially hate-filled response was Trump’s.

The Economist speaks of his creating a “chilling effect” — even voices not directly silenced may be intimidated. Whereas almost all major U.S. newspapers used to endorse presidential candidates, in 2024 three quarters did not.

I’ve invoked before what I call the power imbalance between good and evil. Most people are good, but are restrained by moral scruples. The bad are not, giving them more freedom of action to achieve their ends. Any curb on free speech, supposedly to curtail harmful stuff, will restrict good people while handing more weapons to bad people to mis-use for bad ends. Including targeting those good people who speak out.

I’ll conclude with the author’s own final words: “For all its flaws, a world with less free speech will also be less tolerant, democratic, enlightened, innovative, free, and fun.” Certainly less fun for me.