By Eric Vandenbroeck and co-workers

The Global Fight Over a Powerful Idea

When he reentered the White House in January, President Donald Trump insisted that protecting free speech was one of his key missions. On his first day back in office, he signed an executive order called “Restoring Freedom of Speech and Ending Federal Censorship,” which condemned the Biden administration for “trampl[ing] free speech rights” and instructed federal agencies to uphold the U.S. Constitution’s First Amendment. But in truth, Trump has likely done more to undermine free speech than any U.S. president since the McCarthy era. In his second term, he has launched spurious personal lawsuits against media outlets, sought to pull funding from universities whose curricula do not meet his preferences, and tried to deport foreign students and academics for political speech.

This campaign took an even sharper turn in mid-September, after the assassination of the commentator Charlie Kirk. The Trump administration used the killing to target a wide variety of actors—military personnel, private individuals and companies, nongovernmental organizations, magazines—for their responses. Trump’s vice president, JD Vance, blamed Kirk’s death on left-wing speech and pledged “to go after the NGO network that foments, facilitates, and engages in violence.” Brendan Carr, the chair of the Federal Communications Commission, boasted on Fox News that the FCC would keep ramping up its efforts to punish outlets the administration disfavors.

The Trump administration has moved with startling speed from trumpeting free speech to seeking to criminalize it. At first glance, that might seem to vindicate the arguments in the historian Fara Dabhoiwala’s new book, What Is Free Speech? The History of a Dangerous Idea. Dabhoiwala believes that the modern obsession with free speech—particularly the American belief that almost any restriction on it threatens democracy—has blinded its defenders to how often that right is invoked cynically in pursuit of antidemocratic ends. In his view, the right to free speech has most often been wielded as “a weaponized mantra” by people motivated by “greed, technological change and political expediency” rather than as a principle invoked sincerely to restrain tyranny.

Although Dabhoiwala acknowledges that pre-Enlightenment peoples such as the Athenians valued forms of freedom of expression, his main story begins in the eighteenth century. In that era, he writes, the idea that freedom of speech was necessary for human flourishing went viral across Europe and the United States, despite the fact that the theorists who made the argument often did so “for personal gain, to silence others, to sow dissension or to subvert the truth.” A robust and civil-libertarian interpretation of it became entrenched in twentieth-century American culture and legal doctrine, but Dabhoiwala contends that modern First Amendment jurisprudence undermined the very democratic values it was supposed to safeguard. Rather than fulfilling its promise as an “antidote to misinformation and falsehood,” he writes, the American approach to free speech “often amplifies it.”

Dabhoiwala suggests that contemporary European attitudes toward speech are superior to the defective American conception. In his characterization, Europeans consider citizens’ right to free expression to be dependent on context and more carefully balance it with other social goods. Every EU member state criminalizes hate speech. Many also punish the “glorification” of terrorism and the dissemination of “disinformation” or “false news,” and several retain blasphemy laws.

Throughout much of U.S. history, however, the United States’ First Amendment did little to shield unpopular minorities from persecution. Only in the second half of the twentieth century did it become a formidable barrier against majoritarian intolerance. Today, the Trump administration is trying to breach that barrier—a strategy that would be far easier to pursue under a European-style approach to speech. Europe’s measures have neither eliminated intolerance nor produced a public square free of falsehoods. Instead, they have expanded the state’s discretionary power over dissent. Peaceful protests against Israel’s war in Gaza, insults aimed at politicians, critiques of immigration policy, and irreverent attacks on religion have all led to investigations, arrests, and convictions—and minorities have been among those targeted by laws ostensibly adopted to protect them.

Ultimately, Dabhoiwala’s account—both grievance-driven in its reading of the First Amendment and uncritical in its praise of European restrictions—is profoundly distorted. Its selective telling of history obscures a basic truth: across centuries, free speech has been a genuine engine of emancipation, not merely a contingent privilege. Especially now, as supposed champions of free speech seek to suppress it in the United States, it is crucial to reinforce the principle’s real meaning rather than let those who wield it cynically strip the public’s faith in its potential. Free speech has repeatedly offered the powerless a peaceful way to challenge the powerful—a legacy illuminated by key episodes in U.S. history that Dabhoiwala mostly ignores.

 

The Poisoned Well

Dabhoiwala directly targets the canonical thinkers who were essential in articulating modern free-speech doctrines. These include the early-eighteenth-century British writers John Trenchard and Thomas Gordon, whose pseudonymously authored Cato’s Letters claimed that freedom of speech is the “great Bulwark of Liberty,” and John Stuart Mill, who extolled “the liberty of thought and discussion” as essential to progress and warned against the tyranny of majority opinion. For Dabhoiwala, however, Cato’s Letters were less a noble defense of liberty than a text full of “deliberate fabrications” and “glaring contradictions.” Mill’s On Liberty was “profoundly imperialist and intellectually flawed.” In his view, these thinkers promoted a kind of false consciousness, persuading people that they were defending a universal ideal while advancing arguments that ignored the harm speech could inflict on the common good.

In his telling, American free-speech exceptionalism was not a principled triumph but the most extreme outgrowth of this poisoned doctrinal tree. The United States, Dabhoiwala writes, came to base “its rules about freedom of expression” on opportunistic ideas promulgated “more than two hundred years ago by violent rebel settlers deeply distrustful of governmental power and obsessed with individual liberty for propertied white men.” In the second half of the twentieth century, as the Supreme Court struck down laws restricting speech, American free-speech purism permitted white supremacists to issue barely disguised threats against minorities and neo-Nazis to march through neighborhoods inhabited by Holocaust survivors. Dabhoiwala argues that the American devotion to the “sacrosanct right” of free speech ultimately began unraveling freedom itself, resulting in a toxic public square and the election of a “dangerously unhinged demagogue.”

Given the Trump administration’s cynical doublespeak, some may be tempted to accept Dabhoiwala’s premise. But his substantial omissions cleverly stack the deck against free speech, all but ignoring the extent to which the powerful have used censorship to maintain social hierarchies and the real emancipatory power of free speech to advance the rights of the persecuted.

What Is Free Speech? devotes just eight lines to Athenian democracy, even though its twin ideals of free and equal speech emerged as a crucial way to keep oligarchic elites in check. These egalitarian principles inspired later reformers such as Thomas Paine and George Grote, a British historian and ally of Mill who praised the “liberty of thought and action at Athens, not merely from excessive restraint of law, but also from practical intolerance between man and man.” For British and early American radicals, the Athenian example showed that free expression was the foundation of an equal society.

Even when What Is Free Speech? shifts to its central, modern tale, it continues to overlook how oppressed peoples frequently turned to free speech to better their situation, often successfully. Dabhoiwala depicts Cato’s Letters as the original sin that set up a perverted three-century obsession with free speech. But well before that text was published, the seventeenth-century English Levellers—to consider just one example—had demanded the right of “speaking, writing, printing, and publishing [our] minds freely.” Their calls were ruthlessly crushed, with leaders flogged or jailed. This legacy hardly supports the idea that free speech operated as a cynical creed mainly championed by the privileged. Dabhoiwala reduces Baruch Spinoza, the seventeenth-century Dutch-Jewish philosopher, to a cautious proponent of “harmless” scholarly free thinking. This is a serious distortion. Spinoza called freedom of speech a “natural right” and made it the cornerstone of his vision of a secular, democratic state—a philosophy that was brutally suppressed by throne and altar alike.

 

Who’s Speaking?

Downplaying this longer, more complex history allows Dabhoiwala to present free speech as “an essentially artificial doctrine”—and to caricature the U.S. approach. Context has always shaped how citizens evaluate the right to free speech. Most people do not think a neo-Nazi rally and a protest against Russia’s 2022 invasion of Ukraine are equally worthy of moral support. But such judgments must be distinguished from the principle of free speech itself, which exists to protect expression regardless of shifting majoritarian consensus. And in countless episodes Dabhoiwala overlooks, it has, in fact, done so.

Dabhoiwala argues that the Supreme Court “reanimated an archaic textual relic” to shape modern free speech doctrines that permitted “American Nazis, antisemites, racists and other spreaders of group hatred [to] shelter behind the First Amendment.” But as the legal historian Samantha Barbas has shown through extensive archival research, in the mid-twentieth century, civil rights organizations such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee became the most forceful American opponents of restrictions on hate speech and so-called group libel, or disparagements of a category of people. “At a time when lynchings and cross-burnings were rampant,” Barbas writes, “and when American fascist demagogues and neo-Nazis routinely terrorized minorities,” these groups concluded that education and counterarguments—not legal prohibitions on speech—would be the most effective tools against hatred. Their advocacy substantially influenced the Supreme Court’s rulings and greatly helped the civil rights movement advance equality.

As chief of the NAACP’s Legal Defense and Educational Fund, a role he occupied between 1940 and 1961, Thurgood Marshall opposed group libel bans, even when they were applied to protect Black Americans from vicious racism, warning that they would become “a weapon” for “the enemies of minority groups.” As the first Black justice on the Supreme Court, he joined the 1969 unanimous decision in Brandenburg v. Ohio, which struck down the conviction of a Ku Klux Klan leader who had issued thinly veiled threats against Jews and Black people. That ruling established the imminent danger test for incitement.

Dabhoiwala insists that this standard “undermines the very basis of the democratic political order.” But Brandenburg has shielded antiwar protesters, civil rights leaders, and Black Lives Matter activists—and without it, the Trump administration would have had a far freer hand in silencing dissent.

In other words, the defenders of American free-speech exceptionalism have not principally been “propertied white men.” They have often been the descendants of those who had been enslaved, excluded, and persecuted—people who were rightly distrustful of government power. Their belief in the value of free speech arose from firsthand exposure to the trauma of racist violence and the bitter consequences of empowering the state to decide who can be silenced.

Many contemporary Americans have come to believe—with some justification—that the liberal-progressive tradition abandoned free speech, enforcing ideological conformity in elite universities, the media, and cultural institutions. That retreat made it easier for Trump to weaponize free speech as a rallying cry against cancel culture even as he moved to suppress dissent. When free-speech restrictions are deemed legitimate only if imposed by the “right” people against the “wrong” ones, then free speech indeed becomes an artificial concept, malleable in the hands of whoever holds power. Civil libertarians such as Marshall, Aryeh Neier (a former executive director of the American Civil Liberties Union), and Congresswoman Eleanor Holmes Norton have cautioned that this view of free speech is a dangerous gamble: the tools used to suppress hate today can be turned against protest, satire, or dissent tomorrow. Their warnings were prophetic.

 

Not All That Glitters

Dabhoiwala favors an approach to free speech in which “the rights of any speaker must always be balanced against their responsibilities to the public” and in which context, not principle, guides the application of legal protections. He finds inspiration in European democracies and institutions. Yet under those entities’ purportedly better-balanced models, the scales have consistently tipped in favor of further restricting speech. Dabhoiwala seems blind to this development, focusing too much on the European model’s stated ideals and too little on the actual condition of free speech in European countries. In practice, measures that provoke alarm when Trump deploys them—such as the deportation of foreign residents for controversial speech—are disturbingly common in European democracies. Many European speech restrictions are, in fact, far more onerous than anything yet implemented by the Trump administration and would be unconstitutional in the United States.

Dabhoiwala claims that European hate-speech laws mainly function as symbolic “political statements.” What does he make of the thousands of Germans who, since 2019, have faced arrest for online speech, including criticism of their government’s COVID-19 policies and sarcastic memes lampooning powerful politicians? In reality, a largely white German political-administrative class decides which minorities deserve protection and which face prosecution. Bans against pro-Palestinian demonstrations have severely curtailed Germans’ right to protest peacefully in many cities, and alarmingly, laws that restrict speech have been turned against the minorities they were designed to protect—for instance, when both Muslims and Jews have been arrested during demonstrations against Israel’s war in Gaza.

In France, meanwhile, President Emmanuel Macron has initiated legal proceedings against people who have mocked him as a Hitler-like figure. During his tenure, 46 civil society organizations have been banned by decree (more than under any other government since 1959), hampering French civil society’s efforts to mobilize dissent. In the United Kingdom, the political climate is eroding the hard-won freedoms the Levellers advocated for four centuries ago. Hate speech and antiterrorism laws have been wielded to repress protesters: just this summer, an Irish comedian was arrested over months-old posts criticizing transgender women in male spaces, a Turkish immigrant was fined for protesting Turkish President Recep Tayyip Erdogan’s authoritarian drift, and more than 800 people were arrested for demonstrating against the government’s ban on a pro-Palestinian civil society group.

Some Europeans might shrug off these encroachments as marginal. Yet there is little evidence that the “balanced” approach actually creates more broadly tolerant societies. Germany’s Federal Office for the Protection of the Constitution has found that the number of right-wing extremists in the country more than doubled between 2015 and 2024. The report also noted a 47 percent rise in right-wing extremist crimes from the previous year.

This trend is not restricted to Germany: in 2024, the European Parliament reported “a sharp rise in discrimination, hate crimes and hate speech across the EU.” Hate-speech laws often backfire. Far-right leaders such as Marine Le Pen in France, Björn Höcke in Germany, and Geert Wilders in the Netherlands have gained public appeal after being prosecuted under such restrictions.

 

First Principle

Speech can lead to real harm. Extremist rhetoric, conspiracy theories, and lies amplified by social media have deepened the United States’ political polarization. But if the United States had European-style speech restrictions backed by deferential courts, the Trump administration would have the legal right to follow through on far more of its threats to prosecute enemies. (The Biden administration, too, might have been tempted to crack down more overtly on its adversaries—for example, newspapers that reported on the president’s health.)

In fact, many of the alarming actions the Trump administration pursued in the wake of Kirk’s killing already happen in Europe. Trump is not improvising a uniquely American abuse of power; he is copying elements of the European playbook that Dabhoiwala urges the United States to adopt. Dabhoiwala might claim that Trump’s crackdowns are nakedly antidemocratic while Europe’s restrictions safeguard tolerance. But that defense ignores the collateral damage to free speech already visible in Europe—and rests on the naïve assumption that notions of the “common good” remain stable when power changes hands.

Instead, the First Amendment continues to function as a critical obstacle to Trump’s ability to fully implement his most censorious policies. In May, three federal judges struck down an executive order targeting law firms that have employed people or represented clients that Trump views as enemies. Judges have ordered the release of foreign students arrested for their speech and blocked the enforcement of orders targeting universities. Today’s crisis of free speech in America is not the legacy of John Stuart Mill or First Amendment fetishism. It has arisen because too many Americans have lost their faith in free-speech exceptionalism—at the very moment when the First Amendment remains the strongest constitutional barrier to Trump’s censorious agenda. Yet the First Amendment’s text alone cannot guarantee robust debate. Time and again, unpopular and persecuted groups—political, racial, and religious—have fought to strengthen their practical force. Americans must work again to secure that inheritance.

 

 

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