Freedom of speech is in a bad place. The modern, young identitarian left appears to have given up on it, regarding it as a dinosaur, of value only to bigots, billionaires, and kleptocrats. Elements of the political right regard it as little more than a political football, to be kicked about in the culture wars as a weapon in the war on woke. The former are more interested in cancelling speakers who offend them than in engaging them in debate and seeking to defeat them in argument. The latter take an extremist approach to free speech (as long as it is speech they agree with), holding that anything goes in an unlicensed, unregulated marketplace of ideas.
Both are profoundly wrong and are doing immense damage to the once-cherished ideal of free speech. To help rescue free speech from the cesspit of the culture wars, there are two places we can look: to the past and to the world elsewhere. If free speech is in the deepest trouble in the United States, is it quite as bad elsewhere in the Anglosphere and is it in a better place beyond the English-speaking world? And if free speech is in trouble now, how did we get here? Was it always thus, or was a wrong turn taken at some point on the West’s journey from the eras of heresy and treason, sedition and blasphemy (all of which were crimes capable of being committed by words alone)? These are among the questions Fara Dabhoiwala asks in his new book, What is Free Speech? A historian now at Princeton who has formerly worked in Oxford and elsewhere, Dabhoiwala is well placed to address them.
What Dabhoiwala gets right is his framing: the way he sets up the problem is excellent, and the book’s introduction and opening two chapters are its strongest sections. He is right that free speech “has always been a weaponized mantra,” that understanding free speech “is also, always, about uncovering the unequal distribution of power,” that free speech has often been regarded as dangerous not only for its power to “unsettle orthodoxy” but also by reason of its being “perpetually manipulated by the powerful.” He is right that “wherever one looks, liberty of speech was never a stable concept.” He is right that, in the history of human development, it is a recent idea and that for most of recorded history it was simply “unthinkable”—not even “intelligible” as a concept. He is also right that, in the English-speaking world, Trenchard and Gordon’s Cato’s Letters (1721–23) and John Stuart Mill’s On Liberty (1859) did more than any other works to articulate, celebrate, and popularize notions of free speech.
Or, at least, he is very nearly right about that. To these twin canonical texts, I would add a third, John Milton’s Areopagitica (1644), the importance of which Dabhoiwala downplays. Milton’s great essay, for all its partisanship and other flaws, remains the most powerful tract in our language against pre-publication censorship. It is curious that Dabhoiwala should undervalue it, for Milton’s argument actually accords with the conclusion in What is Free Speech?, where the interests of the audience are privileged as much as the interests of the speaker. Milton was fundamentally opposed to censorship, not because it diminishes the rights of the author (or printer or publisher), but because it infantilizes the rights of all of us as readers to choose for ourselves what we should read. Dabhoiwala would agree with that, and his argument in the closing section of his book would have been all the stronger had he harnessed Milton in its support.
Cato’s Letters and On Liberty are far from perfect accounts of free speech. There is a marked naivete about Trenchard and Gordon’s blithe assumption that the truth will always and inevitably emerge if only “all opinions are equally indulged and all parties equally allowed to speak their minds.” And there is a notorious silence—or gap—in Mill’s “harm principle” owing to his refusal to define what a harm is when it comes to what he called “the liberty of thought and discussion.” Is hate speech harmful? Is offensiveness a harm that can justify the curtailment of speech? Is misinformation? Mill answers none of these questions. Dabhoiwala devotes much of his book to challenging Cato’s and Mill’s arguments for free speech.
Free speech does not empower us all equally, but its absence empowers only the censors, whatever garb they clothe themselves in.
Neither Cato’s Letters nor On Liberty should be regarded as sacred texts. Neither is above criticism. Some of Dabhoiwala’s critique is astutely judged, particularly of Trenchard and Gordon’s failure to see how cut-throat competition amongst newspapers and problems of media partisanship undermine several of their arguments for a free press. But Dabhoiwala sets out not to rescue Cato and Mill from their mistakes and oversights, but instead to trash them. That approach is as baffling as it is bizarre.
Trenchard and Gordon were writing in the 1720s avowedly about political speech. In that era, the polis was composed entirely of men. Cato has nothing to say about women’s right to free speech. Does that undermine any aspect of Trenchard and Gordon’s arguments against the official abuse of laws of sedition and libel? Mill worked for the East India Company. His focus in On Liberty is on the liberty of thought and discussion in England, not in India. Does that undermine any aspect of its argument? Dabhoiwala seems to think so. Yet, in whose interests is it to draw our attention to Mill’s early work as a civil servant in the East India Company but not to his pioneering campaign later in life as a Member of Parliament in striving to bring Eyre to justice for the racist atrocities he committed as Governor in Jamaica? All his life, Mill campaigned for women’s rights. Why fail to mention this when so much scorn has been poured on Trenchard and Gordon’s failure to accommodate women’s free speech in their account? We all know what gesture politics is. There is such a thing as gesture history, too. Much of Dabhoiwala’s account reads more as a history against free speech than as a history of free speech.
Speech and Truth
The reason for this is that Dabhoiwala appears to crave not free speech as much as true speech. Throughout his accounts of Cato and Mill, he is captivated above all by their assertions about truth. He is right that what they have to say about truth can be unpersuasive. Free speech has not acted as a guarantor of truth, and Cato was wrong to suggest that it would. Mill, however, did not repeat that mistake. His argument was that free speech was needed in order to enable us to seek the truth, not that free speech would necessarily ensure that the true would drown out the false. (In this regard, Mill’s position was closer to Milton’s than it was to Cato’s.) Mill did not regard any argument from truth as his most important contention for free speech. At the core of his vision for liberty of thought and discussion lay his notion of individual human flourishing. We can grow and develop, and our judgement can be valued, Mill argued, only when we are exposed to that which we do not already know—to new facts, to divergent opinions, and to novel interpretations. That is not only a much stronger argument for free speech than any that relies on truth, but it is also an argument for genuinely free speech and not an argument only for true speech.
The best argument for free speech, however, is to imagine a world without it. We do not have to imagine very hard. Radicals and revolutionaries of many stripes have been so convinced that they are right and everyone else wrong that they have readily grabbed and grasped at the levers of control over discussion. Robespierre did it. So too did Lenin. Neither was very concerned with freedom. Both were very concerned with what they thought was true. And, as Dabhoiwala observes, we know how that story ends. The privileging of true speech over free speech has been tried. It was tried by the medieval church in the age of heresy. It was tried by pre-Enlightenment governments in the age of sedition. It was tried by the totalitarian regime of the socialist Soviet Union. It has been tried and, repeatedly, it has failed.
One of the greatest strengths of Dabhoiwala’s book is his insistence that free speech regimes distribute power unequally. Media moguls, press barons, and the owners of social media platforms wield immense power over their viewers, readers, and users. But when we imagine (or recall) a world without free speech, we conjure a world where the church, the state, or the vigilante goons who wish only to cancel and destroy that with which they disagree run riot. Free speech does not empower us all equally, but its absence empowers only the censors, whatever garb they clothe themselves in, whether they be priests, inquisitors, ministers, or culture warriors.
Free speech needs to be rescued from the culture wars, not condemned, its pioneers pilloried for having failed to prevent them.
What then must we do? If America is drowning in lies, if social media is awash with torrents of misinformation, how might we work our way out of the abyss without giving up on the great liberal values of freedom and autonomy in thought and discussion? There is an answer. In a word, it is balance. Free speech is of immense value. But it is only one value in a pantheon of principles. Dignity is also of value, as are accuracy, honesty, impartiality, decency, personal privacy, and a whole constellation of matters which may sometimes clash and come into conflict with freedom of speech. Social life, political life, and the pursuit of happiness depend on the liberty of speech being balanced with other public goods such as these. Everywhere this is understood, even in the United States.
American Exceptionalism
It is often claimed, including by Dabhoiwala, that American exceptionalism privileges free speech as an absolute, as a card that trumps all competing values and principles. Yet this is not quite so. It is true that in the modern United States, aspects of free speech are more heavily protected than is the case in Canada, Britain, or Europe. But this is not true for all speech and even in the US, there are some forms of speech that are not legally protected at all, such as obscenity, child pornography, defamatory speech, and fighting words. Moreover, the over-protection of speech is a recent development in American jurisprudence—it dates only from the 1960s. Many plausible interpretations of the First Amendment are available, which are far less militant—far more balanced—than the one which is usually preferred by a majority of today’s Supreme Court justices. Care should be taken, though, not to exaggerate the extent of the differences between American and (say) British or European jurisprudence on free speech. For sure, there are legislative restrictions on speech which are nowadays ruled unconstitutional in the US, which would be lawful in Britain or Europe—restrictions on campaign expenditure or on hate speech, for example. But there are also many more cases where a balance is struck between speech and some countervailing interest, such as security (think of the recent TikTok case) or dignity (think of Virginia v. Black, upholding the criminalization of cross-burning). Free speech is a powerful right in US constitutional law, and there are instances, particularly in the last twenty or so years, of it being militantly enforced, but even in America, even today, it is very far from being an absolute.
Once we accept that free speech is a value which must be balanced against others (as Dabhoiwala does and as I would agree), we have to start thinking hard about who should undertake the balancing exercise and how they might achieve it. This is precisely the difficult, often laboriously detailed work that Dabhoiwala acknowledges needs to be undertaken. Yet he disdains from doing it himself. Others, thankfully, are working on it. European human rights law, for example, has developed over more than fifty years a sophisticated account of how freedom of expression must be balanced in a proportionate manner against other competing rights and interests. It is a pity Dabhoiwala has nothing to say about this.
Or take another example. Britain’s Online Safety Act, passed by the UK Parliament in 2023, is one of the world’s leading legislative attempts to bring a degree of regulation to the Internet—particularly to search engines and to social media platforms—with a view to making it a safer space, especially for children. The legislation runs to hundreds of pages. It took over four and a half years to enact. It will be enforced by a statutory regulator, Ofcom, which has already published thousands of pages of guidance and consultation documentation on the Act’s implementation. It is an enormous enterprise. It makes an avowed attempt to balance freedom of online expression against the harms that speech can cause, particularly speech with the speed and reach of which social media boasts. It is both vital and painstaking work. Yet it merits a mere seven and a half lines in Dabhoiwala’s more than 400-page book. In the European Union, a Digital Services Act is doing similar work to the UK’s Online Safety Act. Dabhoiwala gives that legislation a bare paragraph.
These are striking omissions, not least because the ways in which European human rights law and British and European online safety legislation seek to balance free speech against other values are deeply contested and highly controversial. My point is not that they necessarily get the balance right, but that they are, at the least, well-meaning attempts to achieve in practice what Dabhoiwala rightly says needs to be striven for, which is why it is so mystifying that he seems so uninterested in them.
If you want to get serious about how free speech is going to operate in the online ecosystem, if you want to understand how this once beautiful but apparently now merely “dangerous idea” can help to guide us through the myriad difficulties and challenges of Internet regulation, if you are worried about how we should respond to the bilge of misinformation online, you are asking the right questions about free speech. But if you seek insights into what the answers might be, What is Free Speech? is not going to help you. Free speech needs to be rescued from the culture wars, not condemned, its pioneers pilloried for having failed to prevent them.