FREE SPEECH: its history and future by Jacob Mchangama

Free speech has a long history. Long enough that we know the pitfalls so well that they have nicknames.

There’s Milton’s Curse to describe the tendency for emerging leaders to defend free speech, only to walk backward once they are in power. More recently, we added the Streisand Effect, nicknamed after Barbara Streisand’s failed 2003 attempt to keep photos of her Malibu home off the internet. Her failed resistance generated far more attention.

This long, fragile and volatile path for free speech is the focus of the new book Free Speech A History from Socrates to Social Media by Jacob Mchangama. It is thorough, important and enjoyable. I recommend it. Below are my notes for my future research purposes.

Here are my notes:

• )The “Weimar fallacy” has been used to describe the ineffectiveness of anti-hate speech laws, as the inter-war Weimar Republic passed several pieces of legislation to combat the spread of Nazi ideology, only to see it continue to flourish
• In 1525 the great humanist scholar Erasmus of Rotterdam – himself a prodigious writer – complained that printers “fill the world with pamphlets and books… Foolish ignorant malignant libelous mad impious and subversive”
• In the 1780s, Dutch printer Elias Luzac changed course and called the “pests of society” newspaper writers “who published “everything that surfaces in the raging in sick brains”
• In 1858, New York Times said the transatlantic printing press was “ superficial, sudden, sifted, too fast for the truth”
• In 1948, even free speech advocate Alexander Meiklejohn argued “The radio as it now operates among us is not free. Nor is it entitled to the protection of the first amendment “ since it “corrupts both our morals and our intelligence”
• Hittite Laws of 1650: reject the king and your house will become a heap of ruins
• In the Hebrew Bible, punishment for cursing “god and king was stoning”
• Isegoria and Parhesia: two kinds of speech in Ancient Athens
• Athens had a kind of free speech even for poorer residents; Rome had a privileged free speech for elites: This remains a tension and way free speech divides today.
• 6-8CE, Augustus, the first Roman emperor, extended laws past action to words, to create clear “literary treason” — among the earliest known laws explicitly limiting written speech
• Tacitus praised Cordus as a free speech martyr: “Through persecution the reputation of the persecuted talents grows stronger.”
• This is an historic example of what we today call the Streisand effect, after Barbra Streisand failed attempts in 2003 to legally suppress an image of her Malibu home actually brought more attention to what she wanted to squash
• Augustus and Tiberius autocrats were seen by early Enlightenment thinkers as similar to the absolute monarchies of early 18th century Europe (29)
• Isegoria is the root word for “church” in French (église) and Spanish, and “ecclesiastical” as during Roman times this referred to religious freedoms (the other Greek term implied you could speak to your god)
• Constantine adopting Christianity: the persecuted became the persecutor as religious of freedom swapped
• Index of forbidden books Gelasius
• Justinian closing the Academy of Athens in 529, hugely symbolic act cutting direct roots to Plato
• “As much as 90% of the ancient literary works we know from secondary sources perished.” Especially in the collapse of the Roman Empire via Christian book burnings
• Abbasid caliphate (roughly 750 AD) helped Islam take the mantle of open intellectual debate as western thought Descended into dark ages.
• Graeco-Arabic translations brought Greek learning that was later available to Enlightenment western thinkers (37) This translation was well paid work that lasted until 10th century as books to translate dwindled
• A population boom and mini-warming period in Europe led to development of universities that replaced monasteries as centers of learning and Classical Greek learning that remained flourishes (46)
• “The first documented case of academic censure, at the University of Paris happened around 1206, and the Aristotlien philosopher and theologist Amalric of Bene was found guilty of false and heretical teachings for advocating pantheism” (47)
• Henry III invited scholars to come to Oxford and Cambridge where Aristotle could still be read (an early example of competing European kingdoms incubating intellectual thought)
• Bernard Gui’s Book of Sentences collects 940 court decisions rendered by this famous inquisitor of Toulouse between 1308~ and 1323~: He sent just 42 to authorities for burning of 900 inquisitions he did in early 14th century.
• The Mirror of Simple Souls, among banned books
• Western Europe “poking around” concept in universities is an older concept than it might sound
• Catholic Church Inquisition was unparalleled in its bureaucratic effectiveness; the “closing the Muslim mind” halted the Arab world’s succeeding of Greek-Roman educational leadership
• In 1424, a manuscript cost as much as a farm or vineyard. By 1530s, a pamphlet cost a loaf of bread; great British literacy rate went from 5% in late 15th century to 16% in the 16th
• Academics debate about the impact of the Ottomans rejecting printing press technology until 1720. No printed Islamic texts until 1802. (Conflicts exist about the history)
• In 1525, Erasmus wrote of the technology that allowed printers to “fill the world with pamphlets and books… Foolish, ignorant, malignant, libelous, mad, impious, and subversive; and such is the flood that even things that might’ve done some good lose all their goodness.”
• Malleus Maleficarum, (Latin: “Hammer of Witches”) was a “How-to” of witch-hunting
• Pope Innocent VIII in 1487 introduced a Papal bull that declared that regulation was necessary to stop “the misuse of the printing press for the distribution of pernicious writing.”
• “The more printing presses operating in a city the more likely the city was to join the Protestant camp.” Gutenberg plus Luther, who wrote in colorful German not translated and academic Latin
• Translated New Testament into German in 1522, Longterm Luther agitated for literacy. In Britain Netherlands and Swedes literacy was near 100% by 1900, in Catholic countries like Spain and Italy. It was still around 50%
• A mixed free speech legacy though: Luther advised princes to murder peasant revolts that followed New Testament reading but he defended anabaptists: “ if he is wrong, he will have punishment enough in hellfire.”
• Catholics and Lutherans combined to persecute Anabaptsits , who occupied part of Germany in 1534-1535, requiring polygamy
• Peace of Augsburg in 1555 introduced cuius regio, eius religio (whose region, his religion) (74)
• Henry VIII issued banned books list from his chancellor Thomas More to keep William Tyndale vernacular English translation of New Testament from 1526-1528 entering England but he failed. Later he led English Reformation
• His Catholic daughter Mary I nicknamed Bloody Mary because she burned so many heretics
• “English restrictions on speech were adopted piecemeal as a response to specific moral panics or crises rather than as a wholesale attempt to control every word spoken or printed.” From the era of Elizabeth, English censorship developed around defamation and libel rooted in older Roman laws, rather than Continental Europe and Catholic that pursued “thought crimes” (79)
• Castellio on Calvin’s Geneva: “men are puffed up with knowledge or with a false opinion of knowledge and look down upon others. Pride is followed by cruelty and persecution so that now scarcely anyone is able to endure another differs at all from him. Although opinions are almost as numerous as men, nevertheless there is hardly any sect which does not condemn all others a desire to rain alone. Hence a rise banishments, chains, imprisonments, stakes and gallows.” The only way out? “ forbearer one another in love, which is the bond of peace.”
• Calvinists in France, known as Hugenots, led to French civil war in March 1562
• In 1559 Pope Paul IV introduced his infamous index of prohibited books which one historian labeled “the turning point for the freedom of inquiry in a Catholic world” Lasted until 1966
• Transylvania and Polish-Lithuania were small 16th century enclaves of relative freedom of religion
• Author argues freedom of religion is the origin of freedom of speech given how linked state and religion was
• Akbar the Great in India: “What constancy is to be expected from proselytes on compulsion?” He had a discovery and made Moghul India far more religiously tolerant until his great grandson rolled back those freedoms
• In 1579, The Union of Urecht, which was the informal constitution of the Dutch Republic, guaranteed “each person shall remain free in his religion and that no one shall be investigated or persecuted because of his religion,” in part as a response to them breaking away from the oppressive Spanish Habsburg empire
• Between 1600 and 1800 no one read or printed more than the Dutch. An estimated 259 books and pamphlets were consumed per thousand inhabitants annually during the second half of the 17th century, but the French consumed only 70
• Dutch took hold of corantos
• Rene Descartes left France for more tolerant Dutch Republic and still pushed boundaries with Cartesian doubt
• Spinoza : “The end and aim of the state, in fact, is liberty.”
• In 1684 Bayle launched News from the republic of letters, “a journal of book reviews and learned commentary that became the 17th century version of a listserv for European intellectuals” (101)
• In 1643 John Milton published anti pre publication censorship poem Areopagitica: “Give me the liberty to know to utter and argue freely according to conscience, above all liberties” (106) It used anti catholic propaganda to make his case)
• Euripides wrote in his play The Suppliant Women : “This is true Liberty when free born men Having to advise the public may speak free… What can be Juster in a state than this?”
• Milton’s Curse refers to champions of free speech who turn censors
• John Nalson “paper bullets of the press” sparked first English civil war in 1642, injuring the late King Charles
• The Levellers were a radical faction pushing for equality
• More speech is the only answer to bad speech (though frequently critcized as an argument)
• William Penn persecuted and founds Pennsylvania colony in 1681
• Roger L’Estrange infamous surveyor of printers and licensee of the press
• In 1683 John Locke goes into exile and then writes his most radical stuff (but had his own limits , including same anti Catholic stance)
• Glorious Revolution and Toleration Act
• In 1695, the English Parliament let lapse its Licensing Act, helped by lobbying from John Locke
• Why did The Enlightenment (1630s-1789) happen when it did? The end of the 30 Years War, Descartes’ Cartesian philosophy, Newtonian science and “as well as the enlargement of Europe’s collective brain through the emergence of an active public sphere.”
• In the Age of Enlightenment, the question is no longer which orthodoxy to believe, but whether to believe in (any) orthodoxy at all.” (117)
• Censorship moved from religious blasphemy to political dissent and obscenity
• Coffeehouses became “penny universities” Since coffee was just a penny ; 83 in London in 1663, 550 by 1700 (119)
• Luzac’s influential 1749 Essays on Freedom of Expression (But like Dirck Coornhert, he’s forgotten to history)
• Star Chamber case from 1606: truth was not a defense against libel of government (123) (This is a Blackstonian type of press freedom)
• Cato’s letters in London journal 1720-1723: In number 15, William Gordon wrote the famous line “freedom of speech is the great bulwark of liberty,” that was repeatedly invoked in future
• North Briton #45
• By 1750s, France had overcome its censorship to become a center for enlightenment thought, including two tools for censorship: Directeur la Librarire (pre publication) and inspecteurs de la librsruer (secret police)
• In the period of 1659-1789: 17% of Bastille inmates were for literary crimes. Including Voltaire and contributors to Diderot’s landmark encyclopedia (which was later privately saved by the chief censor)
• “A century after the first publication, the French cities with most subscribers to [Diderot’s] Encyclopedia were also the most innovative and prosperous.”
• Catherine the Great and Frederick the Great took on some enlightenment ideas but maintained serfdom (Catherine) and prepublication censorship (including against Rousseau’s Emile) (139)
• Emmanuel Cointreau to “enlightenment is mankind’s exit from its self incurred immaturity.” In Berlin monthly and influential Prussian magazine
• The Swedish Age of Liberty: in 1766, Chydenius wrote: “ The freedom of the nation is always proportional to the freedom of printing it possesses, so that neither can exist without the other.”
• Swedish freedom of the press act, Before a 1772 coup but it spurred Europe on
• First colonial printing press in 1638, came under Harvard
• Rhode Island, Maryland and then PA (allowed Protestant and Catholic alike in Act for Freedom of conscience) all steps toward now toleration
• Pennsylvania’s frame of government from 1682 punished “all scandalous and malicious reporters, backbiters, the Famers and spreaders of false news.” (151)
• 1722-founded New England Courant was founded by James Franklin with his 16-year old brother Benjamin contributing his legendary Silence DoGoode essays
• In 1728 he founded Pennsylvania Gazette, then in November 1737, Franklin published On Freedom of Speech and the Press to argue “freedom of speech is a principle pillar of a free government; when the support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins”
• Zenger case (including a Philadelphia lawyer)
• In 1815 John Adams wrote a letter to Thomas Jefferson in which he wrote “the revolution was in the minds of the people and this was affected, from 1760 to 1775, in the course of 15 years before a drop of blood was shed at Lexington.”
• John Adams said in the letter to Thomas Jefferson “history is to ascribe the American Revolution to Thomas Paine” (Paine’s Common Sense was later followed up by his Age of Reason)
• Pennsylvania’s constitution went further than others and sooner than the Declaration of Independence to defend the right to freedom of speech and writing
• Philadelphienisis by Benjamin Workman was an influential essay that depicted him among the Anti Federalists who got the Bill of Rights enacted
• The spirit of the American Revolution swung back to Europe in Dutch newspapers, influencing the Dutch Patrol movement. Though squashed by Prussians, it led to development in France, as Louis XVI welcomed those exiles. The Estates-General met at Versailles in 1789, and Revolution soon sparked.
• The Initial draft of declaration of human rights by Marquis de Lafayette was with Thomas Jefferson (174)
• Olympe de Gouges (Slavery of the Blacks in 1790 and women’s suffrage) was guillotined as part of the French Revolution’s Great Terror
• Catherine the Great (1729-1796) said “the affairs of France were the concern of all crowned heads,” following revolution and its backlash
• Pitt’s mini reign of terror in England after the American revolution (194)
• Benjamin Franklin Bache charged with seditious libel for his newspaper (it was more Republican-Democratic like Jefferson and Madison, who were called the French faction, in contrast to the Federalists who were criticized as English sympathizers); this speech freedom was further eroded by The Alien and Sedition Acts that John Adams signed
• George Hay wrote in an essay on the liberty of the press that any legislative remedy to counter speaking against the government is “a power fetal to the liberty of the people”
• The Sedition Act did not protect (rival) Vice President Jefferson, when he won the presidency to beat Adams, Jefferson was still conciliatory with both political parties and did not renew Sedition Act. Crucial strength for freedom of speech (202)
• The American sense of free speech was internalized as oppositional to English from the Revolution: Americans had thus become accustomed to a much more vibrant public sphere, or different views clashed openly in taverns and on the pages of pamphlets newspapers, as reflected in the uncompromising language of the first amendment.” (204)
• Pericles: “Ye are many – they are few”
• Susannah Wright was radical bookshop owner, who has to pause her trial to breastfeed her child (210)
• James Mill and his famous son John Stuart Mill helped argue threats of libel helped spread those ideas
• George Grote published in 1846 an influential history of Greece that rediscovered many Pericles tendencies, setting up other thinkers
• John Stuart Mill’s On Liberty is held by many as the foundational text on the importance of free speech, though it threaded together older ideas
• Restricting free speech, Mill wrote, prevents people from the great benefit of “exchanging error for truth” (214)
• Mill’s On Liberty slays with lines like ““We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.”
• In 1815, Benjamin Constant made the argument that the French Revolution was not caused by press freedom, but conversely, he argued press freedom would have scrutinized the French crown’s financial mismanagement that ultimately did lead to the French Revolution. Press freedom is a release valve not a spark
• France in 1822 removed press censorship though allowed post publication limits, marked as a big step forward
• Heinrich Hein wrote “where they burn books, they will also burn people in the end.”
• As a leading writer commented “during the French revolution one cut journalists heads; under Napoleon one silence them; under the restoration one jailed them; under the July monarchy one ruin them financially“ a counter enlightenment in France pushed against the revolution post napoleonic wars and return to monarchy
• In the 1870s, Karl Marx Das Capitale escaped the censors because they believed that few people would “read it and even if you were will understand it” (222)
• By 1859, England remained a stronghold of press freedom for Marx and others to escape (Europe as hotbed for free speech because it was a fire that couldn’t be put out, one regime competed against another)
• Christian Karl Josias wrote “The fight for the freedom of the press is a holy war, the holy war of the 19th century” (223)
• Springtime of the Peoples reminds me of Arab Spring
• In 1881, France established freedom of the press for the fourth time, this time to stay (227)
• Freedom of speech was only reached through, as British historian JB bury said: “it’s attainment has lain through lakes of blood”
• President Jackson supported a law to limit postmasters mailing anti slavery publications but since pro slavery material could circulate in the north it wasn’t seem as legitimate
• Angelina Grimke, daughter of a slaveholder who turned abolitionist and in 1838 became first woman to speak before an American legislative body (Massachusetts), addressed the newly opened Pennsylvania Hall in Philadelphia saying, “Every man and every woman present may do some thing by showing that we fear not a mob”. “The next day and estimated 10,000 people attacked and burned Pennsylvania all of the ground by the police and fire brigade stood idly by” (240)
• Frederick Douglass said “to suppress free speech is a double wrong. It violates the rights of the year as well as those of the speaker.”
• University of North Carolina president Professor Benjamin Hedrick was a professor of chemistry and supporter of 1856 Republican presidential nominee John Fremont, who was running to oppose slavery. Hedrick is burned an effigy and fired” (241)
• Espionage and Sedition acts by President Wilson in WWI gave rise to anti war speech as illegal, Emma Goldman among those persecuted. Columbia University professors lost jobs due to being anti war and the New York Times supported their dismissal. Censorship board listed 250k potential suspects (246)
• Supreme Court justice Oliver Wendell Homes introduced the famous “clear and present danger” test , screaming fire in a crowded theater, this was later used to replace the “bad tendency” test in Herndon case which the ACLU defended
• Madison called free speech a “parchment barrier”
• “Affection cannot be manufactured or regulated by law.” Ghandi on free speech
• “Militant democracy” in 1937 phrase by Karl Lowenstein and “paradox of tolerance “by Karl Popper in 1945 in the open society and its enemies
• But George Orwell wrote ““If you encourage totalitarian methods the time may come when they will be used against you instead of for you” (258)
• Lenin viewed the press as bourgeois influencer; “no less dangerous than bombs and machine guns.” (260)
• In 1940, Stalin had 4K full-time censors (265)
• NYT Walter Duranty masked relationship and support to Stalin
• Mussolini was a former newspaper editor: “Fascism requires a militant journalism,” he explained “newspapers and strive to find an essential uniformity, to serve the cause… And to ignore the rest, burying it in the darkness of absolute indifference.” (269)
• Nazi propaganda was routinely called libel (Bernhard Weiss lawsuits) and fined, leading Goobbels to proudly label his newspaper Der Angrief (German for “the attack”) to be Germany’s “most frequently banned daily.” (276)
• Julius Streicher, the publisher who was executed by Nuremberg trials
• Goebbels also said “Our way of taking power and using it would’ve been inconceivable without the radio” which was heavily controlled by the Weimar Republic democratic government, keeping nazis out but then they won control over it with power.
• New York Times v Sullivan, part of a string of civil rights Supreme Court decision by Earl Warren
• Madison wrote that free speech that scrutinizes “public characters and measures” is “the only effectual guardian of every other right.”
• UDHR, ICCPR and then Helsinki Act
• Czechoslovakia was among the countries that used Soviet-era influence on freedom of speech to include a hate speech clause against secular critics. Eleanor Roosevelt had pushed against such clauses for that very reason, mixing outdated blasphemy for true hate speech (better understood by the American standard from Brandenburg of inciting imminent violence), though Bush pulled out of a UN commission blocked by OIC, Obama era pushed for new wider protective clause
• Vaclav Havel and Vlado Gotovac were writers turned democratic presidents following Helsinki Act
• But then the free speech recession
• The controversial 2020 New York Times op-ed from conservative U.S. Senator Tom Cotton was an example of the “bad tendency test, he old argument against speech that could have potential future harm rather than any incitement to immediate harm. This was a tendency used by southern states against abolitionists and the civil rights movement.
• After the 2015 Charlie Hebdo shooting, there were calls to support free speech but at the same time the French police intervened in more than 2,300 cases of “apology for terrorism,“ which could be praise for terrorist-type acts. Is that free speech?
• A 2016 Danish law outlawing an Islamic preacher condoning spanking children or polygamy: is that free speech?
• “The road that led from the Weimar Republic to the third Reich suggests that censorship is an unreliable weapon in the fight against the enemies of democracy that may backfire and inflict collateral damage of democracy itself.” (346)
• What about speech in private homes?(This was a tool for the heavily criticized European Inquisitions)
• “The British race relations act of 1965 prohibited incitement to racial hatred. The first person to be prosecuted for this offense was a black man.”
• Should Alex Jones be deplatforned so quickly by all the private-company platforms?
• John Perry Barlow’s declaration of cyberspace
• CDA230 made the internet what we know it today, by allowing platforms to avoid legal scrutiny
• The Blogosphere to Arab spring (Abdesslem Trimech was unknown but Mohamed Bouazizi sparked uprising because his martyrdom was filmed)
• In 2021 the annual Global Trust Index measured the highest ever difference between the “mass population being “generally distrustful” and the “informed public “or elite generally trustful when measuring trust in media government NGOs and businesses (358)
• The author marks surprise that The European Federation of Journalists pushed for EU regulation and sanctions of online platforms that failed to remove this information, which would necessarily entail granting some European body the authority determine what is true and false (362) (though they’ve since issued other statements)
• Jonathan Rauch uses the phrase “constitution of knowledge:
• Sociologists Lee Clarke and Caron Chess use “elite panic” to explain new reactions to free speech
• “As US tech firms adopt increasingly restrictive terms of service to comply with European laws, global social media users are being subjugated to moderation without representation. “
• Germany NetzDG is part of rollback that authoritarian regimes use as justification. (If democracies do it, why can’t we?) Author argues that benefits outweigh risks; that mostly existing partisans fall into trap of disinformation to confirm their bias and restricting speech lets enemies use it
• LM Sacasas writes of the “digital city”
• “Some degree of abuse is inseparable from the proper use of every thing; and no instance is this more true than that of the press “ James Madison
• “If the first amendment helped Trump win office, it was instrumental in removing him from it again. On the other hand, the absence of free speech in Russia has been a key component in Putin’s long and obsessive stranglehold on Russian politics.”
• “Jealously guarding the crumbling pillars of privileged access to the public sphere is unlikely to provide a winning strategy amidst the mistrust of elites in general in the established media in particular.” (389)
• “Are we really safer when we know less about what motivates our neighbors?”