Why is it that the USA is such a hornet’s nest of libertarians? In many parts of the world, discernible harm has been done by the misuse of social media, and now the threat of AI looms.
The Silicon Valley tech bosses getting rich from social media tend to resist its regulation. Elon Musk claimed he bought Twitter as a ‘common digital town square’ and ‘to preserve it as a venue for free speech.’ After the purchase, he promptly cut the staff employed to uphold regulations. In the US, free speech is regarded as an absolute right under the First Amendment The First Amendment of the Constitution states: “Congress shall make no law […] abridging the freedom of speech or of the press”. But the new paperback by historian Fara Dabhoiwala is a sustained argument against the libertarians.
The real thrust of Dabhiowala’s book is political liberty of speech, specifically how the First Amendment came into the US constitution. In Chapter 3, he quotes from a mural in Washington DC: “Without Freedom of Thought there can be no such thing as Wisdom and no such thing as publick Liberty without Freedom of Speech”. The quotation is wrongly attributed to Benjamin Franklin when, in fact, it comes from Cato’s Letters, published by two ambitious London journalists, John Trenchard and Thomas Gordon during 1720 and 1722.
Dabhoiwala hails this as a landmark in the history of free speech. ‘Liberty of the press’ became something Englishmen boasted of. As John Tutchin exclaimed, ‘we breathe free air, we think free, we are neither pen nor tongue tied.’ It was this notion of press freedom which influenced the American founders, with the First Amendment now being applied to social media.
Before the Freedom of Speech
In Chapter 1, Dabhoiwala points out that Christian rulers in medieval Europe criminalised ‘false tales’, heresy, and blasphemy. The post-Reformation fracture led rulers to wield ever increasing control over the opinions of their subjects. In England, under Henry VIII, over a hundred individuals were executed for sedition. Forms of speech were punished in local communities: uttering spells, cursing, scolding, or gossiping. Punishments included a ducking in the local pond, or, in Scotland, the brank — an iron gag around the head!
By the middle of the sixteenth century, some Protestant thinkers were arguing for free religious expression, as the truth emerges in ‘fair and open debate’, argued Henry Vane. In Areopagitica, John Milton wrote ‘Let her and Falsehood grapple, who ever knew Truth put to the worse, in a free and open encounter’.
Throughout the century, all stage plays including Shakespeare’s, had to be approved first by the government censor. But at the end of the century, the English Parliament let the laws of pre-licensing lapse in 1695.
The new age of liberty
Cato’s Letters were written in the age of London coffee houses, when patrons enthusiastically read newspapers and pamphlets containing satire and cartoons. Both the Whigs and Tories had issued laws against the spreading of false news, and the publishing of seditious papers, or libels. There were growing fears of Jacobin rebellion against the Hanoverian monarch, and a French invasion to instate the Stuart dynasty. By 1737 new theatre licensing again muzzled the playwrights.
Into this society, these two ‘Cato’ journalists had inserted the novel idea that free uncensured press was essential for political liberty. Dabhoiwala, while exposing the self-serving motives of these two journalists, also gives incisive critique of their free speech argument, which opposed any government censorship but ignored slander and misinformation. Transposing the arguments of the Protestant radicals of the previous century to the political factions of their days, they asserted only complete liberty of speech allowed the truth to break through. ‘The people have no interest, but the general interests […] the people when they are not misled or corrupted, generally make sound judgement of things’. Sound familiar? That is the early voice of political libertarians claiming to speak for ‘the people’.
These ideas were immediately exported to the American colonies and printed in their newspapers. Dabhoiwala reveals the mixed values of American colonist writers who were promoting political freedom while owning, or trading in, enslaved people. ‘Despite its universalist language, the gendered and racial shape of liberty was already implicit in the ideals transplanted across the Atlantic’.
European Influence
Chapter 6, called ‘The Accidental Exceptionalism of the First Amendment’, asserts that there are two concepts of free speech as a personal right. The first protects liberty but forbids abuses such as slander, or infringing other laws laid down by government, or ignoring the regulations for young people. The second is one of libertarianism, enunciated in the First Amendment to the US Constitution. This chapter delves into the arguments of the time, pointing out the overriding motive of the American colonists to rid themselves of English tyranny. Under the influence of European discussion of rights, especially in France, they put liberty of the press as an inalienable right. However, this is only in the constitution for Congress; the various states started to have different laws on this along non-absolutist lines as they were already facing rebels with ‘erroneous opinions respecting the American cause’.
In France, the deputies saw their role as balancing individual freedom against public good. They realised the absolutist definition avoided the hard questions of abuse. Accordingly, the wording of what became Article 11 in France states that while every citizen has the right to speak freely, provided they are then responsible for any abuse of that liberty in cases provided for by the law. In other words, they took the non-absolutist position and the American politicians noticed this. Indeed, as Dabhoiwala wryly observes, it is possible that if cross-Atlantic maritime communications had been faster, or even the horse couriers between Washington and New York quicker, the American constitution would not have kept the absolutist definition of free speech.
Colonialisation, whiteness, and free speech
The next three chapters follow history through the eyes of those whose voice was excluded from the public sphere: enslaved people in America and the Caribbean, and the colonised people in British India. Having Indian heritage himself, Dabhoiwala is especially interested in the views developed there. He points out that J.S Mill, the most famous writer on liberty in the mid-nineteenth century, was the son of James Mill who wrote a ‘History of India’. He thus inherited a view that societies are ranked by civilisation and those at inferior levels, including Indians, had to be ruled by the more powerful race (the English), hence censorship there.
Despite sharing his contemporaries’ ranking of humanity, J.S Mill was a great promoter of freedom for Haiti, for Black Jamaicans, for women. On free speech, he concluded with the absolutist position that no opinion should be silenced, even if plainly wrong. Like Milton, he believed the truth would prevail. He avoided the problem of harm by asserting that liberty of thought and discussion are essentially the same, and it is only when they incite action that they become harmful. In modern times, politicians and the police still grapple with this: should the person who posted a lie on social media that caused a race riot be charged, or only those who actually rioted?
The media – who does it serve?
Chapter 10 is entitled ‘The Marketplace of Ideas’ and begins with a stinging comment that those who made the most innovative claims for press liberty were ‘the most venal journalists […] profiteering media owners […] self-interested corporations’. Early Marxists complained that ‘the thought of the people has become the privilege of possessors of capital’. To counteract this, totalitarian states claiming to be acting for ‘the people’, whether in Nazi Germany, Russia, or China, seized weapons of censorship and shut down dissenting voices completely.
Yet it is wrong to suppose the only choice is either the marketplace of ideas (protected by a First Amendment) or total state control. There are examples of media created for the public good with neither state nor private profit motives, such as the Guardian Trust, or the public mandate of the British BBC and American NPR. Systems of regulation like Ofcom, at ‘arms length’ from the State, can be set up. The EU and Ireland has started to legislate with the 2024 Digital Services Act, which intends to hold several reprehensible internet companies responsible for risk on their sites.
But in the USA, attempts to curb the harm done by the new media via the internet clash against the First Amendment. Thirty years ago, in the 1990s, the ‘free’ world felt triumphant. President Clinton proclaimed ‘liberty will spread by cell phone and cable modem’. The resulting legislation aimed to preserve ‘the vibrant and competitive free market that presently exists for the Internet’. This is what boosts the tech brothers like Elon Musk as a ‘free speech absolutist’. In 2023, in a case about medical misinformation, a US federal judge cited the First Amendment, stating it is illegal for the government to curb a private company!
Final thoughts
This book is scholarly, 10 chapters (343 pages in all) backed up by 120 pages of notes and an index. But it is a worthwhile read, as it argues so clearly of the need to curb absolutist views of free speech with clearly enunciated rules for the public good.
What is Free Speech? is published by Penguin Books
