Free speech: It's more complicated than you think

Humanity has grappled with the issue of how freely we should be allowed to speak in public since at least the time of the Ancient Greeks. Photo / Getty Images

History tells us that suppressing ideas we don't agree with can be counter-productive, says a free speech advocate. By Ani O'Brien.

Humanity has grappled with the issue of how freely we should be allowed to speak in public since at least the time of the Ancient Greeks. But in recent years, the topic has gained new impetus in the wake of horrific incidents such as the Charlie Hebdo attack in Paris and the Christchurch mosque shootings.

In the United States, billionaire Elon Musk has revived the debate with his on-again, off-again bid for Twitter. Here, New Zealanders have taken sides over issues such as the cancelled speaking tour of Canadian far-right activists Lauren Southern and Stefan Molyneux; and the "Listener letter" by a group of scientists over the place of mātauranga Māori in the school science curriculum.

A new book by Danish lawyer and human rights advocate Jacob Mchangama attempts to take some of the heat out of the subject and shed some light instead. Researched with dedicated attention to detail, Free Speech: A History from Socrates to Social Media is resolutely humane, despite the political quagmire it navigates. Mchangama spoke to the Listener about some of its central themes, and what he believes they might mean for New Zealanders. What follows is a lightly edited transcript.

Human rights advocate Jacob Mchangama warns that restrictions on the free speech of extremists tend to produce a violent backlash. Photo / Supplied

You've been talking about free speech for quite a while now, and you've had a podcast as well as the book. Why do you find yourself so preoccupied with the subject?

Denmark, where I was born and raised, is a country where free speech is quite secure, where you don't have to fear torture, disappearance or imprisonment if you criticise the government. But in 2005, a Danish newspaper published a number of cartoons, some of them depicting the Prophet Muhammad, and that really kicked off a global battle of values over the relationship between free speech and religion.

Suddenly a lot of people who saw themselves as progressive, and liberal, secular defenders of Enlightenment values, started questioning free speech, saying, "Well, these cartoons are an abuse of free speech. You have to exercise free speech responsibly and these cartoons are a way of punching down on a vulnerable minority."

A number of Muslim-majority countries were boycotting Denmark and exerting diplomatic pressure and also waging a campaign at the United Nations to adopt blasphemy laws as an international human rights norm. This was something that would probably not affect people in the West so much, but would definitely affect people in Saudi Arabia and Egypt, and many other Muslims who might have a different interpretation than the official version [of the religion] in their respective countries.

In Denmark, there was sort of a divide: people on the left were, generally speaking, apprehensive about the cartoons, whereas people on the right were almost free-speech absolutists. But then a right/centre-right government came into power and started adopting laws targeting extremist Muslims by restricting free speech, and suddenly the roles were reversed.

So this, really, was what got me interested in free speech and why I've been focusing on it. What is this value that we speak so much about and that we cherish – at least in the abstract– but which is so difficult for human beings to uphold when confronted with ideas and expressions that we loathe?

Yours was also a strong voice against the limiting of free speech following the massacre in Norway in 2011. Here, we're having similar discussions following the Christchurch terror attacks. What was your argument in 2011, and do you think it's applicable to Christchurch?

Oh, yeah, very similar dynamics. In both cases, it's a right-wing extremist, a white-supremacist loner, targeting ideological opponents. Both of them published these ranting, raving manifestos online. And of course, in the Christchurch massacre, there was also live streaming of the actual massacre on Facebook, which added to the calls for a crackdown. We even had the "Christchurch Call", headed by your Prime Minister.

The problem with this, first of all, is we have to look at [whether] there's evidence that limiting the free speech of right-wing extremists, for instance, is likely to be an effective cure. The available evidence points to the contrary. If you look at Europe, a number of studies suggest the countries that restrict the free speech of right-wing extremists the most are also those that tend to experience the most right-wing extremist violence. There seems to be evidence of a backlash effect.

We also have studies from psychology that underpin this. If you have the sense of being the subject of repression, you tend to feel that violence against the government, for instance, is more legitimate.

Of course, no one is arguing that you should have the right to incite terrorism or violence. That's a pretty universal red line. And more generally, I would say that the historical case for restrictions on extreme speech as an efficient safeguard for democracy and tolerance is pretty weak.

We've seen that here in Europe, with what in the book I called the "Weimar fallacy" [the collapse of the German Weimar Republic democracy when the Nazis rose to power]. Prior to that, we saw that the Nazis were frequently censored and restricted in their speech, and they used it as a platform to gain more attention, to become martyrs. Most problematic of all, the Nazis used the emergency measures of the constitution and the laws of the Weimar Republic to abolish free speech and abolish democracy once they were in power. These instruments are dangerous to have lying around if authoritarians get into power.

You also argue that "leaders of any political system, no matter how enlightened, inevitably convince themselves that now freedom of speech has gone too far". Why do you think this is inevitable – is it human nature?

I think it's a mix. It's human nature that, to a considerable degree, human beings have sort of a default position of intolerance towards out-groups, and ideas and expressions that we deem dangerous to social cohesion, to values we hold dear.

Now, with 24-hour coverage of politics and the demand on politicians to respond to all things, it's very difficult for politicians not to react. Your Prime Minister, Jacinda Ardern – I think it would have been extremely difficult for her to go out publicly after the Christchurch massacre and say, "These were horrific crimes. Of course the perpetrator should be punished, but we must stand firm on free speech, even for speech that we abhor." That probably would not have satisfied the public mood in New Zealand.

When there are these extreme shocks to a country, there's an expectation that politicians do something extraordinary. The politicians themselves need to show that they're in control, even if the instruments they use might run contrary to the basic values of society.

In many ways, the crackdown on free speech after the Christchurch massacre corresponds – even though the scale is different – to American politicians post 9/11, adopting all kinds of measures that we today recognise as having gone too far and been counterproductive.

I don't expect New Zealand to go to war with Australia because the perpetrator was Australian, but you get the picture. One of the most basic conceptions of free speech is that tolerance of speech does not entail approval of the speech in question. But that becomes very hard when you've just witnessed a massacre of innocent Muslims in two mosques in New Zealand by a white supremacist, right-wing extremist.

To argue, "No, in fact, we should not ban the ideas of this person, so long as they don't incite violence directly", will inevitably be interpreted by many as approval of such content. It becomes very, very difficult for human psychology to dissociate tolerance from approval, even though that is a very crucial divide.

In your examination of free speech in Ancient Greece, you refer to two different types of free speech: political rights and social rights. If we look at our current situation, how do you think free speech is most vulnerable to erosion?

It's difficult to dissociate the two because if, at the cultural level, tolerance is in decline, then politicians are likely to react to that demand with more supply of restrictive speech.

Protesters in Aotea Square in 2018 demonstrating against Canadian alt. right speakers Lauren Southern and Stefan Molyneux. Photo / Doug Shering

Ultimately, I tend to think that the culture of free speech is probably more significant than the laws, because the laws and how they are being interpreted and enforced are downstream of the culture of free speech. If you want to be Machiavellian, politicians can then use restrictions on free speech to target specific groups.

I'm not saying that in New Zealand there's a concerted effort to abuse anti-terrorist speech restrictions to target political opponents – I hope that's not the case! But we've certainly seen, throughout history, that this is a very likely outcome even in open democracies. The Weimar Republic laws are probably the ultimate example of how such restrictions can then be used to restrict free speech.

I'm interested in what you have dubbed "elite panic". Who do you see as the "elites" in this context?

The ideals of free and equal speech originated in the Athenian democracy some 2500 years ago. By the standards of the day that was a very egalitarian conception of free speech, in that all free-born male citizens could exercise free speech at the political level by voting and debating the laws that affected them.

And then you have this concept of "parrhesia", which is the cultural-civic component of free speech. Athenian democracy was open to even foreigners coming in and exercising free speech.

Then you had another conception of free speech in the Roman Republic, which was much more top-down and elitist. It was mostly the well-educated, wealthy elite that exercised free speech, whereas commoners, the plebs, did not have a voice in public assemblies.

Throughout the history of free speech, we see the egalitarian and the elitist conception competing with each other. Whenever the public sphere is about to be expanded, either through technology or political developments, there will be this concept of "elite panic". Those who are the institutional gatekeepers dread the expansion of the public sphere to those groups of people who have been kept out, because they view them as a danger to their own privileged access.

Xi Jinping's China is a juggernaut of repression and censorship, aided by digital technologies. Photo / AP

They may also think there are very good reasons why they're being kept out – because they are insufficiently educated, because they are too fickle to really understand and sift through the information in a responsible manner.

We see this with the printing press, with the radio, TV. We see it with rights of women, racial minorities, and today we see it very much in the digital age, with the emergence of the internet and social media. Traditional media and politicians, who were sort of the elites, are very concerned about disinformation and hate speech and so on. And they also, I think, resent the fact that the internet and social media have allowed ordinary people to bypass the traditional gatekeepers and upend institutional authority.

The elites, politicians, and traditional media tend to focus on the harms and the costs of egalitarian free speech in the digital age and discount all the huge benefits that we see. There are many very interesting voices on social media providing perspectives that wouldn't otherwise be heard.

And I think we have a tendency, unfortunately, in open democracies to take the benefits of free speech for granted. That shapes our response to egalitarian free speech in that we see perhaps more of a threat than a gift.

You argue that we're in a free speech recession. Do you think it's inevitable that it will continue to erode, or can we prevent the slide?

I think for the foreseeable future – and again, I'm just speculating – it seems the trend very much is towards a continuing of the "free speech recession". It's very difficult to point to democracies that adopt robust measures to protect free speech, but you can point to all kinds of democracies that are doing the opposite. Am I right in thinking that you've been discussing a hate speech law in New Zealand?

It's on hold, but it is still kind of lurking there.

That's good to hear. Certainly, in countries all over Europe, we see restrictive measures being in the ascendancy. But I don't think it's inevitable that it will always continue. I see the history of free speech very much as see-sawing.

I think it's very enlightening to see the difference between democracies and Russia. The staple of propaganda and censorship that the Russian public is being fed and the ability in open democracies to actually counter Russian propaganda almost in real time by using the multiple sources that are available to us is due to free speech.

Journalist Marina Ovsyannikova interrupts a TV news broadcast on Russia's state-run Channel One with a placard protesting against the invasion of Ukraine. Photo / Supplied

I also think that the threat of China is something that might rally free speech in Western democracies, because censorship and repression are so absolutely central to China. China has built the most efficient juggernaut of repression and censorship, probably in the history of the world, fuelled by their digital innovation and artificial intelligence, and surveillance. There might be this view in the West where we see that free speech is our value; one of our fundamental values that distinguishes us from the model of Xi Jinping's China.

I think innovation might also be the way. Right now we have become used to these big, centralised social-media platforms, whether Facebook or YouTube or, to a lesser degree, Twitter. But I think there are interesting things going on towards a much more horizontal, decentralised internet that is not captive to the top-down, centralised content moderation or censorship of one platform deciding the limits of the practical free speech of billions of people.

Social media has changed our lives in so many ways. But as you talk about in your book, it's not the first time new technology has done this. If we were to look at the advent of the printing press and compare it to the introduction of the internet, how do you think they compare in terms of impact on society?

Well, I hope we won't see the same degree of violent disruption in the age of the internet as we did with the printing press. The Reformation was very much fuelled by the printing press. That was followed by religious wars and persecution that lasted centuries and cost millions of lives.

Of course, the printing press was not the decisive factor, but it certainly contributed to the disruption. In comparison, I would say that the disruptions of the digital age are very mild. But who knows what is lurking down the road? These are still very early days.

I think YouTube is from 2005 and Facebook is from 2004, and that's a blink of an eye in human history. Hopefully, we are able to adjust better, and learn some of the lessons of history to ameliorate some of the costs and harms of social media, in the same way that there were negative effects of the printing press [to adjust to].

Aristophanes parodied influential and powerful figures of the day, and likewise, there have been clowns and jesters who have entertained the powerful century after century. Now, when comedians are being slapped at the Oscars for offending each other, has the "jester's privilege" ended in 2022?

It seems that maybe there is pushback in the name of political correctness against what is permissible to say.

I've been rediscovering Monty Python's Flying Circus. And you know, I just cannot believe that someone at the BBC allowed that back in 1969. I cannot imagine a good, elderly couple turning on the BBC and watching the episode on full-frontal nudity or the lumberjack song.

In my opinion, the humour of Monty Python has never been exceeded. To me that probably was a high point of the culture of free speech in ascendancy. If Monty Python was made today, updated to the digital age, would it be allowed on the BBC? I don't know. But it's probably a good question. l

Free Speech: A global history from Socrates to social media, by Jacob Mchangama, (Basic Books, $37.99)