Jacob Mchangama

March of the Autocracies

Air Date: May 23, 2022

Justitia CEO Jacob Mchangama discusses the threat to free speech around the world.


HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome our guest today, Jacob Mchangama. He is CEO of Justitia, and author of the new book “Free Speech: A History from Socrates to Social Media.” Welcome Jacob.


MCHANGAMA: Thank you so much.


HEFFNER: You are based in Copenhagen, and you are in closer proximity to this new axis of totalitarianism. It doesn’t really matter what direction you look, right? You could be looking at the, the democratic standoff in Pakistan right now. You could be looking at the Russian invasion of Ukraine.  But there seems to be an increasing destabilization of democratic order. And I just wanted to give you an opportunity from the outset to reflect on that.


MCHANGAMA: Yeah. I think there’s a, what I would call a free speech recession. You can see it both in the data, so if you’re a geek, you can look at it at all the data sets. They point very clearly to the effect that, you know, freedom of the media, freedom of expression is in decline across the board. And of course you can find any number of anecdotal evidence from, you know, people being arrested for protesting the war in Russia, to foreign media being thrown out. Unfortunately what, you know, it’s one thing that authoritarian states crack down on free speech. That’s worrying in and of itself, but it’s not the particularly surprising. That has been the 101 for authoritarian states since for 2,500 years throughout the history of free speech.


What I am particularly worried about in this moment is that liberal democracies, open democracies, seem also to have lost sort of their faith in free speech and have increasingly come to see free each in the digital age as being weaponized against democracy itself. And so here in Europe, you see an increase in tendencies for democracies to legislate restrictions on free speech. and in the U.S. where the first amendment provides very strong constitutional protection of free speech you see the culture of free speech being attacked from both the left and the right.

HEFFNER: Just before we dive into the question of speech under assault or scrutiny in democratized societies or semi democratized societies. I just want to follow up with you on the question of autocratic, repressive regimes, where free speech is not possible, or certainly not possible in the same platforms or mediums it is where you are in Copenhagen in the UK elsewhere in Europe or in the U.S. More than the, the question that you raise about free speech being diminished in democratic, under democratic rule, are you more concerned just as a broader framework of the fact that there is less and less actual democratic rule around the world?

MCHANGAMA: Yeah, I think those two trends, unfortunately go hand-in-hand because, but you’re absolutely right in pointing at the fact. You know, if we go back 10 or 15 years, everyone was very optimistic about the internet changing the rules of the game so good old-fashioned censorship would be sort of consigned to the ashes of history and totalitarian, authoritarian state would no longer be able to control the public sphere. But look at China. China now has created perhaps the most efficient censorship machine in the world. And increasingly, authoritarian states have learned to sort of reverse-engineer the internet and social media to serve their interests. And you know, if you’re a dissident or journalist in an authoritarian state, you need the internet, you need social media to circumvent official propaganda and, and censorship. And unfortunately authoritarians have learned to, to rig the game. You can even see, you know, today we’re speaking and yesterday Victor Orban won the election in, in Hungary. And he is someone who has who has very much controlled the public’s sphere and limited the ability of independent journalists to operate there. So that’s a very worrying trend.


HEFFNER: Of course I do want to talk to you about speech and you’re an evangelist free speech. I want to talk to you about it from the context of where you are today in Copenhagen and also from the, the EU and U.S. perspective. But I can’t help just hearing the synopsis of our conversation so far and, and think back on this projection, or at least this fantasy about the end of history. And of course Fukiyama says he’s misunderstood, misinterpreted. And that may be well be, and he’s certainly, you know, still very clear eyed about where we are now. But things seem to be, you know, maybe as a result of the pandemic exacerbating trends, but whether it’s Hungary, you mentioned China, there isn’t really, in certain countries like China and Russia, there’s not even really the vehicle for that expression to take place. There aren’t real political opponents. There aren’t, you know, newspapers that are doing muckraking and, and challenging authorities in power. And then in places like Pakistan or, or India, and now you mention Hungary as well, that there, you know, there, it is very, very dangerous to be that gadfly, or to challenge the party line. And at least in the countries that I just mentioned, there was an aspirational hope, and you as a defender of freedom and a human rights lawyer understand this, there was an aspiration in every single one of the countries I just mentioned, 10 years ago, that things would be different and different as in better, not worse.


MCHANGAMA: Yeah. Yeah. But maybe we also, in the west, perhaps we were too optimistic because it turns out and, you know, we can even see that in western societies that you know, freedom does not, is not enough to satisfy the human psychology. We also you know, have an urge to belong to identity and sometimes those values clash and unfortunately at least from sort of the liberal point of view, these values can clash violently and sometimes the aspiration of freedom is then relegated beyond the needs for, you know, security, identity, belonging. And that is something that we see in a number of these countries. You, know, you mentioned India. India, of course the world’s largest democracy, but increasingly becoming a very liberal democracy where if you have opinions that differ from the ruling party, then you’re in danger. If you’re a religious minority, then you better watch what you say. And that unfortunately is a global trend.


HEFFNER: I think it’s important to make the distinction now that we’ve covered this ground, that that’s not what’s happening in the U.S., in terms of the chilling effect of autocracy and autocracy sort of being what is animating the free speech, censorship, regulation debate. It’s not that particular parties or opposition to the government are being less receptive or less well received. You know, if you are a labor party member in the UK, and you want to attack the prime minister on policy grounds, or even not policy grounds, you still can do that. In, you know, where you are in Denmark you can do that with the leadership. In the U.S. when Trump was president you can do that. When Biden is president today, you can do that. So there’s a specific kind of concern you have about illiberal attitudes towards speech, but how is it manifesting because it’s not manifesting in the, in the sort of you not speak, you know unfavorably about the presiding government?


MCHANGAMA: No, you’re absolutely right. In many ways, I think the constitutional legal protection afforded to free speech under the first amendment in the U.S. is probably the strongest protection of free speech ever in the history of humankind, you know. Go back a hundred years in the U.S., a bit more than a hundred years and you could be thrown in prison for 10 or 20 years for posting American involvement in World War I in pamphlets. That would certainly not fly today under the current interpretation of the first amendment. So you don’t have to worry about saying things about the president. What I see mostly under pressure in the, in the U.S., is what I would call the culture of free speech. And you know, from looking at the history of free speech, it’s, you know, my thesis is that ultimately the culture of free speech is more important than what the law says. So you know, the first amendment was ratified in 1791, but if, you know, in 1798, you could actually go to jail If you criticized President John Adams. The first amendment has not changed, but today you can say just about anything about President Biden, and no one will, will throw you in jail or, or even dream of prosecuting you. But instead there there’s intolerance, I would say on both sides that have to do with identity. So there’s one mostly on the on the left that has a concern about minorities, for instance, who view free speech and the exercise thereof by bigots as a threat to minorities. Whereas the history of the U.S., in my opinion, at least shows that it’s very much, the other way around free speech has been a very, very potent weapon for all kinds of, of oppressed groups and minorities, not least, you know, African Americans when it came to abolitionism, when it came to the civil rights movement.


So one of the reasons why the first amendment enjoys such a strong protection is because the civil rights movement won a number of landmark first amendment cases. New York Times versus Sullivan, which is one of the landmark cases that provides very, very strong protection for the media, for instance, when writing critical stuff about public officials is a civil rights, civil rights-era case. And on the other hand, you see this tsunami of laws from in Republican dominated states, aimed at so-called critical race theory which is I would say a conservative attempt to establish some kind of orthodoxy in the sphere of education, and not only sort of K to 12, but even in colleges and universities. And I think that the problem with this is it’s eating away at the core of free speech from each side. So hollowing out the tolerance, the civic tolerance, which ultimately is the necessary precondition for a strong commitment to free speech.


HEFFNER: I’m so glad you pointed out that in the era of Adams and Jefferson, you know, the Alien and Sedition Acts actually operated in that fashion, that for the first decade and maybe more of America there were, you know, actually there was deployment of the law in that fashion to, to penalize and bar speech from political opponents, but it gradually simmered to an era of, you know, debate and periodicals that were going to be sharing all perspectives. And no one was going to be jailed as a consequence of those perspectives. You mentioned this question of speech now as a kind of cultural phenomenon and how we think about it and whether we are at all shrinking the population of speech. I said I wanted to ask you about how it is in Denmark and broadly in Europe. We know there are more restrictions on curbing dis and misinformation in Europe, but this whole mantra of Americana born out of our experience of the first amendment, that sunlight is the best disinfectant. How do you think of that from the perspective of Denmark and Europe, and then from the perspective of America? Is that still the way we should be thinking of speech?


MCHANGAMA: Well, you know, free speech, I think, all great thinkers about free speech philosophers, and legal scholars have acknowledged free speech comes with harms and costs. So there are consequences of speech. Obviously, speech, you know, can lead to bad things. You know, it would be impossible to organize a genocide without speech. However, my reading of history is very much that when that it does not necessarily follow that because free speech can sometimes lead to bad consequences, restrictions and censorship is an efficient remedy. So very often the cure is worse than the disease. And we also undermine the degree to which speech can actually be used to counter bad phenomenon. But, you know, it’s a fantasy to think that there won’t be bad consequences from speech. January 6th, the attack on the Capitol would not have happened without speech and social media.


I think, you know, I think that’s a given, there were things that, you know, the, the FBI and, and others could have done to beef up security, if they’d taken more seriously what was written by a lot of people on, on social media. But obviously speech was a helped motivate those people who attacked and tried to impede the peaceful transfer of power in in America. So we have to be clear about that, about that. But then if you look at history, so one of the reasons why in Europe, we tend to regulate extreme speech such as hate speech much more vigorously than in America is because we have agreed that you know, the Holocaust and the rise of Nazis happened partly because the Nazis were allowed to contest democratic elections and, you know, publish newspapers.


But what I show in the book is that, you know, in the Weimar Republic in Germany, actually speech of Nazis and others was heavily circumscribed. So you, and the Nazis used the censorship and restrictions their speech, very clever to sort of, you know, what we today call the Streisand effect, sort of painting themselves as martyrs, and to create more publicity around themselves. So someone like Joseph Goebbels who later became propaganda minister started a Nazi newspaper. And he bragged about how often he was administratively banned from publishing this newspaper. And ultimately the Nazis used the emergency measures of the Weimar Constitution that allowed the president to suspend free speech and other civil liberties. They used that those provisions that were supposed to protect democracy, they used those to abolish democracy and, and within a very short period, create a totalitarian one-party state. So I’m very skeptical of, you know, even though I acknowledge that free speech comes with harms and costs, and no one can guarantee that the benefits will always outweigh the harms. I tend to think that they actually do from a, from a democratic point of view.


HEFFNER: That is cogent and clear eyed. And, you know, we just can’t deny the fact that, whether it’s the insurrection or genocide, you know, it comes about as a result of, of some organizing of speech. And in the case of Russia’s invasion of Ukraine, it came about, about through Orwellian speech, through, through a revisionist understanding of history. I mean, revisionist is, is putting it too politely. I mean, the notion of, of the Jewish Ukrainian president representing antisemitism or the Nazism. And so I, you know, how do you grapple with that when, when it’s not even hate speech in its kind of vindictive or ad hominem form, but it’s just a completely fictionalized version of history?


MCHANGAMA: Yeah. But look, you know, that kind of speech, which has, seems to have hypnotized way too many Russians could only that effect in a country like Russia, which is dominated by propaganda and censorship. You know, so, you know, I don’t want to take the comparison between Trump and Putin too far, because that, that would, that would not be serious, but, you know, Trump, during his presidency often fantasized about cracking down on the enemies of the people that he described, independent media, you know, locking up his opponents. He was powerless to do so. Why was he powerless to do so? Because you have a first amendment. Because you have independent institutions, you had a free media, which could, you know, debunk some of his you know, some of the fantasies that, that, and, you know, policies and his Twitter account. In Russia, you don’t have that same, those same mechanisms. And so Putin has been in power for, for 20 years or so. All the while journalists have been killed. Journalists have been imprisoned. Laws have been adopted against extremism that you know, have, have shut down human rights organizations control of social media platforms and someone like Alexei Navalny, who was maybe the most serious the most serious opposition figure, you know, was first poisoned, and then when he, you know, very bravely returned to Russia, thrown in jail. And he’s been given a couple of sentences on top of that. So that kind of propaganda, which stirs a nation into sort of revenge authoritarian aggressive invasion, I think is only possible in a country where you don’t have free speech, where you have that vicious cocktail of official propaganda and very heavy-handed censorship that you unfortunately have in Russia. I think it would be it very difficult to have the same dynamic play out in a liberal democracy. I wouldn’t say it’s possible.


HEFFNER: But you’re saying it’s becoming increasingly possible with, for example, on the right, Republicans who attack critical race theory, but it’s really a Trojan horse for eliminating the teaching of racism or white supremacy, right? I mean, that is a concern…


MCHANGAMA: It’s, that is, that is a concern, but the good thing is that you know, I’m not an expert on the first amendment, but it would seem to me, at least the laws that target, that try to impose some kind of orthodoxy on colleges and universities and public institutions would run afoul of the first amendment.


HEFFNER: Well, it’s happening. It is happening though. It’s happening in universities…


MCHANGAMA: Sure. It’s happening. But, but I, no, I know, but I would imagine that, you know, ACLU and other organizations would be challenging those bills in court. But then you also have on from the other side, you have an attempt to sort of police speech in cultural institutions, not through laws, but by trying to de platform people saying, you know people should not have a right to speak at universities. University professors should be fired if they wrote something offensive in a Tweet or you know the New York Times should not run a provocative Op-ed by a Republican, prominent Republican politician. And that in, that also eats away at the culture of free speech also, because, you know, the definition of what is offensive of a racist and bigoted seemed to be undergoing sort of scope creep. And then it becomes, you know, where are the red lines? And that in itself can help internalize self-censorship in the very institutions that are crucial for that pluralism for giving room to that tolerance and, and pluralism and, and criticism that that is the lifeblood of, of democracy. So, so that’s why, I think…


HEFFNER: In  the minutes we have left, we only have a few minutes, but it, doesn’t it make a difference who’s doing the regulating, whether it’s the state or private institution, because, you know, I was mentioning University of Florida and of course, Florida public schools that are now subject to the new law about, you know, not mentioning homosexuality or teaching about gay people, basically up to a certain point. But, you know, where do you draw the line having studied this history and just chronic chronicled it from Socrates to the present because we live in, like you said, in a culture where Georgetown University can make its own decision about, you know, someone had just hired who remarked, you know, that there aren’t many qualified black women jus for the Supreme Court. Right. I mean, he said, basically, you know, how could you choose only from this group that’s less qualified. And so like, Georgetown is undergoing its own review process. And I wonder in your estimation, if that’s different from the state of Florida, you know, taking action.


MCHANGAMA: Yeah. Yeah, of course it, of course it’s different. But what I argue is that even though one can run into problems under the first amendment and might run into legal problems, the culture of free speech is also extremely important. So if you read, you know, some of the prophets of free speech, you like John Stewart Mill, he worried as much about the tyranny of the majority as he did about the tyranny of the magistrate. If you read Alexis de Tocqueville on his “Democracy in America,” he says, you know Americans could never dream about adopting a law that restricted free speech, not exactly true, but more or less. Right. But he said, you know, if you cross the lines of the majority, then you’ll be subject to persecution. And of course we have, you know, if you go back in time, you’ll see a lot of people also, you know, minorities, you know, if you were, if you were someone like Ida B, Wells who documented lynchings  in the south it would not necessarily be the state that, that came after you, but it would be, you know, white newspapers that incited to persecution or violence or just, you know, made you infamous or someone like Frederick Douglass, who was heckled you know, at an abolitionist meeting. So that history in itself also undermines the culture of free speech.


HEFFNER: We have sixty seconds. But the question for you is what about that cancel culture question in Europe and specifically where you are in Copenhagen? I mean, that question of




HEFFNER: Of a tyranny, I would, a tyranny of the majority, or in some cases, a tyranny that wants to impose a kind of ethical barometer or standard in conversation?


MCHANGAMA: I think (laughs) ironically, you know, our legal restrictions on free speech are more restrictive than in the U.S., but I would say that when it comes to discussions at university and in the media, our cultural institutions, we have more room for speech that would be off-limits in the U.S. due to, for cultural reasons.


HEFFNER: And how would you describe that kind of speech?


MCHANGAMA: Well, you know, I’d like to take the best from Denmark. I’d like to have our sort of culture free speech and the American first amendment, then, you know, we’d be set, and everything would be rosy.


HEFFNER: Rosy. Well, that’s a more positive way to conclude our conversation, Jacob. I really do appreciate your insight and free speech and encourage our viewers and our listeners to check out your new book, “Free Speech: A History from Socrates to Social Media.” Really appreciate your time today, Jacob,


MCHANGAMA: Thank you, Alex. It was a pleasure.


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