Interviewer: Jillian York

Jacob Mchangama is a Danish lawyer, human-rights advocate, and public commentator. He is the founder and director of Justitia, a Copenhagen-based think tank focusing on human rights, freedom of speech, and the rule of law. His new book with Jeff Kosseff, The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom, comes out on April 7th.

Jillian York: Welcome, Jacob. I'm just going to kick off with a question that I ask everyone, which is: what does free speech mean to you?

Jacob Mchangama: I like to use the definition that Spinoza, the famous Dutch renegade philosopher, used. He said something along the lines, and I'm paraphrasing here, that free speech is the right of everyone to think what they want and say what they think, or the freedom to think what they want and say what they think. I think that's a pretty neat definition, even though it may not be fully exhaustive from sort of a legal perspective, I like that.

JY: Excellent. I really like that. I'd like to know what personally shaped your views and also what brought you to doing this work for a living.

JM: I was born in Copenhagen, Denmark, which is a very liberal, progressive, secular country. And for most of my youth and sort of young adulthood, I did not think much about free speech. It was like breathing the air. It was essentially a value that had already been won. This was up until sort of the mid-naughties. I think everyone was sort of surfing the wave of optimism about freedom and democracy at that time.

And then Denmark became sort of the epicenter of a global battle of values over religion, the relationship between free speech and religion with the whole cartoon affair. And that's really what I think made me think deep and hard about that, that suddenly people were willing to respond to cartoonists using crayons with AK-47s and killings, but also that a lot of people within Denmark suddenly said, “Well, maybe free speech doesn't include the right to offend, and maybe you're punching down on a vulnerable minority,” which I found to be quite an unpersuasive argument for restricting free speech.

But what's also interesting was that you saw sort of how positions on free speech shifted. So initially, people on the left were quite apprehensive about free speech because they perceived it to be about an attack on minorities, in this case, Muslim immigrants in Denmark. Then the center right government came into power in Denmark, and then the narrative quickly became, well, we need to restrict certain rights of hate preachers and others in order to defend freedom and democracy. And then suddenly, people on the right who had been free speech absolutists during the cartoon affair were willing to compromise on it, and people on the left who had been sort of, well, “maybe free speech has been taken too far” were suddenly adamant that this was going way too far, and unfortunately, that is very much with us to this day. It's difficult to find a principled, consistent constituency for free speech.

JY: That's a great way of putting it. I feel like, with obvious differences from country to country, it feels like that kind of polarization is true everywhere, including the bit about flipping sides. I guess my next question, then, is: what do you feel like most people get wrong about free speech?

JM: I think there's a tendency—and I'm talking especially in the West, in the traditional free and open democracies—I think there's a huge tendency to take all the benefits of free speech for granted and focus myopically on the harms, real and perceived, of speech. I mean, just the fact that you and I can sit here, you know, I don't know where you are in the world, but you and I can have a direct, live, uncensored conversation…that is something that you know was unimaginable not that long ago, and we just take that for granted. We take it for granted that we can have access to all the information in the world that would previously have required someone to spend years in libraries, traveling the world, finding rare manuscripts.

We take it for granted, but this is the difference between us and say dissidents in Iran or Russia or Venezuela. We take it for granted that we can go online and vent against our governments and say things, and we can also vent things on social issues that might be deeply offensive to other people, but generally we don't face the risk of being imprisoned or tortured. But that's just not the case in many other countries.

So, I think those benefits, and also, I would say, when you look at the historical angle, every persecuted or discriminated against group that has sought and achieved a higher degree of equal dignity, equal protection under the law, has relied on speech. First they relied on speech, then they could rely on free speech at some point, but initially they didn't have free speech right? So whether it's abolitionist the civil rights movement in the United States, you know my good friend Jonathan Rauch, who was sort of at the forefront of of securing same sex marriage in the United States, knows that was a fight that very much relied on speech. And women's rights…fierce women, who would protest outside the White House and burn in effigy figures of the President, would go to prison. Women didn't have political power. They didn't have guns. They didn't have economic power, they had speech, and that's what you need, to petition the government, to shine a light on abuse, to rally other allies and so on. And I think unfortunately, we've unlearned those hugely important precedents for why we have free speech today.

JY: I’m definitely going to come back to that. But first I want to ask you about the new book you have coming out with Jeff Kosseff, The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom. I'm very excited, I’ve pre-ordered it.

So, in light of that, I’ve got a two part question: First, what are some of the trends that concern you the most about what’s going on today? And then, what do you think we need to do to ensure that there is a future for free speech?

JM: So first of all, I was thrilled to be able to write it with Jeff, because Jeff is such an authority on First Amendment section 230 issues. But from the personal perspective, you could say that this book sort of continues where my previous book on the history of free speech finishes.

And so, based on the idea that we are living through a free speech recession that has become particularly acute in this digital age, where we see what I term as various waves of elite panic that lead to attempts to impose sort of top down controls on online speech in particular—and this is not only in the countries where you'd expect it, like China and Russia and Iran, but increasingly also in open democracies that used to be the heartland of free speech—there's a tendency, I think, in democracies, to view free speech no longer as sort of a competitive advantage against authoritarian states, or a right that would undermine authoritarians, but as sort of a Trojan horse which allows the enemies of democracies, both at home and abroad, to weaponize free speech against democracy, and so that's why the overwhelming

legislative initiatives and framing of free speech is often “this is a danger.” This is something we need to do something about. We need to do something about disinformation. We need to do something about hate speech. We need to do something about extremism. We need to do something about, you know, we need to have child safety laws. We need age verification. And you know, you know the list all too well.

JY: I do, absolutely.

JM: Where I think where free speech advocates often fall short, is that we're very good at sort of talking about the slippery slope and John Stuart Mill and all these things, and that's important, but very often we don't have compelling proposals to sell to people who are not sort of civil libertarians at heart, and who are generally in favor of free speech, but who are frightened about particular developments at particular manifestations of speech that they think have become so dangerous to you know, freedom, democracy, whatever interest that they're willing to compromise free speech.

And so we try to point to some concrete examples of—giving life to the old cliché—fighting bad speech with better speech. So some of those examples are counter speech. There are some great examples. One of them is from Brazil, where there was a black weather woman who was the first black weather woman to be sort of on a prominent TV channel, and she was met with brutal racism. So, you know, what should have been a happy moment for her became quite devastating. And so there was this NGO that printed billboards of these very nasty racist comments, blurred the identity of the user who had said it, but then put them in the neighborhoods where these people lived. So that was a very powerful way to confront Brazilians with the fact that, you know, racism is alive. It's right here in your neighborhood. And you know they used the N word and everything, and nothing was censored in terms of this racism, which was put right in front of it of everyone, and it actually led to a lot of people sort of deleting their comments and someone apologizing, and led to, I think, a fruitful debate in Brazilian society.

Then you have other types of counter speech. One of them is a Swedish journalist called Mina Dennert. She started the “I am here” movement. So it's a counter speech movement, which I think spans 150,000 volunteers across 15 countries. And they use counter speech online, typically on Meta platforms, I think, where they essentially gather together and push back against hate speech, not necessarily to convince the speaker that they're wrong, but to give support to those who are the victims, but also to essentially convince what is often termed the movable middle, to show them that there are people who disagree with racist hate speech, and there's actually empirical data to suggest that these can be effective strategies. You can also use humor.

Daryl Davis is a very extreme example. He's a black jazz musician who has made it his life mission to befriend members of the KKK. And he has converted around 200 members of the KKK, to essentially leave it and he does that by just having a conversation. Because if your worldview is that blacks are inferior and should not enjoy equal rights, and you have a conversation with someone in a way where it becomes impossible for you to uphold that worldview, because the person in front of you is clearly someone who's intelligent, articulate, who can counter all your your preconceived notions, then it becomes very difficult to uphold that worldview right? And you can imagine that those members who leave the KKK then become agents of change within their former communities.

So there are various counter speech strategies that have shown a promise, and at the Future of Free Speech [think tank] that I direct, we've developed these toolkits, and we do teachings around the world, I think we've translated them into nine or ten languages. So it's not a panacea, obviously, to everything that's going on, but it's something quite practical, I think. And the good thing about it is also that it doesn't depend on an official definition of hate speech. If you're concerned about a particular type of speech, you can use counter speech to counter it. But you're not engaging in censorship, and we don't have to agree on what the definition of hate speech is. In that way, it’s hopefully an empowering tool.

And another example: we talk about how Taiwan has been quite an inspiring case for using crowd sourced fact checking, for using sort of a bottom up approach to fighting disinformation from China, but also around Covid, so zero lockdowns and no centralized censorship, and they’re doing better than a lot of Western democracies that use more illiberal methods and the crowd sourced fact checking pioneered in Taiwan is what inspired Bird Watch on Twitter prior to its being taking over by Elon Musk, and which is now community notes on X, which I actually think for all the things you might dislike about X, is a feature that is quite promising.

JY: Definitely. I absolutely agree with that, and I'm really glad you mentioned your previous book, which I loved, and the idea of a free speech recession.

You’ve done so much of this work all over the world, and have learned from people in different places and tried to understand the challenges they’re facing in terms of free speech. We actually started this project, Speaking Freely, primarily to share those different perspectives and to bring them to our readership, the majority of which comes from the U.S. What I’d like to ask you, then, is what do you feel that we in the “West” or in more open societies have to learn from free speech activists in the rest of the world?

JM: Just…the bravery of say, Iranians who now face complete—and this was even before the attacks by the US and Israel—complete internet bans. But who have also relied on social media platforms and digital creativity to circumvent official propaganda and censorship. I think those types of societies provide sort of a real time experiment, right? You know, okay, we have we have social media, and it's messy, and sometimes it's ugly, and sometimes some of these tech companies do things that we disapprove of, but you know the cure in terms of further government control, for instance, let's say, getting rid of section 230, adding age verification laws, trying to create exceptions to the First Amendment in cyberspace…we have societies where that is happening, albeit, of course, at a very extreme scale. But would you really trade the freedoms, however messy they are, for that kind of society?

And then, I also worry a lot about the state of affairs in Europe, where I'm from, where it's not unusual if you're in Germany, to have the police show up at your door if you've insulted a powerful politician. For the book, I interviewed an Israeli, Jewish woman who lives in Berlin. She's on the far left and very opposed to to Israel's policies, and she's been arrested four times for for protesting with a plaque that says, “as an Israeli Jew, stop the genocide in Gaza.” And again, you can agree or disagree whether there's a genocide, but that's just political speech. Yet the optics of a Jew—an Israeli, Jewish woman—being arrested by German police in Berlin in the name of fighting antisemitism is, I think, absurd, right?

JY: I’m laughing only because I think I’ve said that exact sentence in an interview with the German press.

JM: But this is the reality right now. And I think it's also a good example of the fact that there have been people on the left in Europe who have said, well, we need to do something about the far right. And therefore it's okay to crack down, you know, use hate speech laws and so on. And then October 7 happened, and suddenly you see a lot of minorities and people on the left who are becoming the targets of laws against hate speech or glorification of terrorism and so on and so forth. And I think that's a powerful case for why you want a pretty hard nosed principle of consistent protection of free speech, also online. And, given the priorities of the current administration in the United States, I think that if the First Amendment and section 230 were not in place in the United States, the kind of laws that you have in Europe would be very moldable for the current administration to go after. I mean, it’s already going after its enemies, real and perceived, but it often loses in court exactly because of constitutional protections, including the First Amendment. But if that protection wasn't there, they would be much more successful, I think, in going after speech that they don't like.

JY: That’s such a fantastic answer, and I’m in total agreement. I was actually living in Berlin until quite recently and saw quite a bit of that firsthand. It’s really troubling.

I want to shift course for a moment. We hopefully have some young people reading this as well, and I think right now in this moment where age verification proposals are happening everywhere—which we at EFF are really concerned about—it’s important to speak to them as well. What advice would you give to young readers who are coming of age around the topic of free speech and who are interested in doing this sort of work?

JM: I think young people are obviously immersed in the digital age, and some of them may never have opened a physical book. I don't know. Maybe it's a Boomer prejudice when I say that, but, but, I don't think it's a stretch to imagine that the vast majority of speech and expression that they're confronted with is through devices of a sort. I think it's crucial to understand that, you know, the system of free speech was developed before that, and so not to focus solely on thinking about free speech only through the lens of the digital age. What came before it is really important to give you some perspective.

So that’s one thing, but I also have two kids, aged 13 and 16, so I’ve thought a lot and fought a lot about some of these issues. I understand where some of the age verification concerns come from. I have parental controls on my children's phones and devices, and try to control it as best as possible, because I do think there can be harms if you spend too much time. But on the other hand, I would also say—and this goes back to the harms and benefits—sometimes there's this analogy that people want to make that social media is like tobacco, which I think is such a poor comparison, because, you know, no one in the world would disagree that tobacco is extremely harmful, right? It's cancerous and all kinds of other things. There are no benefits to tobacco, but social media access, I think, is very different. For instance, I moved to the United States with my family three years ago. My children had no problem speaking English, doing well in school because of YouTube. They could speak almost with the accent, they were immersed into cultural idioms, and they could learn stuff. And also in terms of connections, they have friends back home, it would be very difficult for them to stay in touch the same way that they can now and have connections, if it wasn't due to technology. And so I think that social media for minors also has benefits that make it very, very different from the tobacco analogy.

Plus, I also think, and here I'm pointing my finger at Jonathan Haidt, that some of the evidence that is being pushed for these kinds of bans seem not to reflect scientific consensus, and that there's a lot of subject matter experts who actually think that the case is much more muddled than than the message that he has pushed in his best selling book, but which is now going the rounds.

But it amazed me to look at. First of all, let me say I've admired Jonathan Haidt for a long time. I loved his previous work, but I just feel like his crusade on social media for minors and age verification is…in a certain sense, he's gone down some of the roads that he warned against in some of his previous books, in terms of motivated reasoning and confirmation bias and so on. But I saw Jonathan Haidt praise the Minister of Digital Affairs for Indonesia for their age verification bill that is supposed to come into effect now. Indonesia is a country that right now, I think, has a bill in place that will give further powers to the government to ban LGBT content, and what’s the justification? Protecting children. It is a country where someone uploaded a Tiktok video where they said an Islamic prayer before eating pork…two years in prison, right? So it's a country that is in the lower half of Freedom House's Freedom on the Net rankings. So it's amazing to me that a good liberal Democrat like Jonathan Haidt would essentially lend his legitimacy to a country like Indonesia when no one, no serious person, can be in doubt that these kinds of laws will be used and abused by a country like Indonesia to crack down on religious and political, sexual minorities and dissent in general.

JY: Absolutely. And that actually fits really well with something that I've been thinking a lot about too. I know you've written a lot about the Brussels effect and I'm trying to look at the ways in which a similar effect—not necessarily coming from Brussels, of course—is shaping internet regulation in different directions, in terms of laws influencing other laws.

Now, in terms of laws influencing other laws, age verification is, I think, one of the big ones. I mean, seeing these laws modeled after things that the UK or Australia or the U.S. has proposed, and then, just being made so much worse, and then sometimes echoing back here as well. And I think Indonesia is such a great example of that.

JM: Yeah. I mean, Australia sort of opened the Pandora’s box, and everyone is rushing in now, and I think the consequences are likely to be grave, and I think it fits into another issue which I think is even more concerning, that is this rehabilitation or of the concept of digital sovereignty. If you went back 10 years ago and talked about digital sovereignty, you would say, “Well, this is something that they do in China or Russia,” but now digital sovereignty is shouted from the rooftops in Brussels and democracies.

And you know, I could maybe understand, if digital sovereignty meant, yes, we're going to protect our critical infrastructure, or we don't want to be overly reliant on American tech platforms, given the Trump administration's hostility towards Europe. But digital sovereignty now essentially means a concept of sovereignty which asserts that governments and institutions like the European Union have powers to determine what types of information and ideas their citizens should be confronted with. Now look up Article 19 in the Universal Declaration of Human Rights, what does it say? Everyone has the right to free expression, which includes, and I'm paraphrasing here, the right to share and impart ideas across frontiers, regardless of media, right? You know this. So now we're reverting back to an idea of free expression, which says that the government can now control what type of information that…if a foreign government or information that purports to undermine democratic values in a society, then the government has a right to censor it or require that an intermediary take mitigating steps towards it. I mean, I think that is really a recipe for disaster.

JY: I’m so glad you talked about that. I don’t even think everyone talking about digital sovereignty is working with the same definition.

JM: No no, digital sovereignty can mean a lot of things. But there’s no doubt that it’s now being stretched to also include pure information and ideas rather than critical infrastructure or industrial policy where it may have a more benign role to play.

JY: Absolutely. Well, we’ve covered a lot of territory, so I’m going to ask you my favorite question, the one we ask everyone: Who is your free speech hero?

JM: I think my free speech hero would be Frederick Douglass. To me, he’s just someone who epitomizes not only being a principled defender of free speech, but someone who did free speech in practice. In his autobiography—he wrote three, I think—but in one of them there’s a foreword by the great abolitionist William Lloyd Garrison, and he describes watching and listening to Frederick Douglass give one of his first public speeches in Nantucket in 1841 and Garrison describes the impact that Douglass had on this crowd and he says something along the lines of: “I think I never hated slavery so much as in that very moment.” So you can almost feel the impact of Douglass’s speech, and that’s the gold standard, right, for what speech can do and why it should be free.

JY: Such a great answer. Thank you.

JM: Thank you.

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