What is Free Speech? The History of a Dangerous Idea
By Fara Dabhoiwala
Harvard, 480 pages, $29.95
Fara Dabhoiwala’s revisionist history What is Free Speech? has arrived in the United States at an odd moment. Three years ago, the book would have been seized on in the pages of prominent publications, perhaps to defend the Biden administration’s ill-fated appointment of Nina Jankowicz as disinformation czar. Now, however, with Democrats out of federal power and their institutions under siege, Dabhoiwala’s defense of common-good speech regulation has gone mostly unacknowledged by opinionmakers. Given Dabhoiwala’s progressive views, his book won’t find many enthusiastic readers on the right either, though the Trump administration has recently sought to restrict what it regards as hateful speech—first on college campuses and now, in the wake of Charlie Kirk’s assassination, in broader society.
In ways both intended and unintended, What is Free Speech? is an apt history for our increasingly postliberal moment. A British historian who teaches at Princeton, Dabhoiwala takes readers on a tour of the path the notion of “free speech” has followed from what he pinpoints as its genesis in 18th-century England to Scandinavia, America, the British Raj, and beyond. We begin in early European modernity, an era when even slight political or religious heterodoxy often proved lethal. Slander, defamation, blasphemy, and insufficient respect for one’s social superiors could be punished by public castigation or bodily mutilation. “Pre-modern people took for granted that evil talk did real damage,” writes Dabhoiwala. “It didn’t just injure individuals: it poisoned the whole community.” By the close of the 17th century, though, freedoms of religion and conscience had established footholds in English and Dutch law and philosophy, even if speech was still circumscribed by restrictions on tone, content, and anything “that might injure the ‘public good’ or ‘civil society.’”
It was only after 1700, Dabhoiwala claims, that “the rhetoric of religious liberty” was “cleverly hijacked” to advance freedom of political speech. The hijackers in question, two London journalists named Thomas Gordan and John Trenchard, invented the modern conception of free speech in Cato’s Letters, a series of essays published between 1720 and 1723. “No one before ‘Cato’ had ever put forward an essentially secular ideal of free speech as a popular political right,” Dabhoiwala says. Having established the foundational status of the Letters as foundational to modern free speech, he characterizes them as a “deliberately mendacious fiction” and a “self-serving tissue of deliberate falsifications, glaring contradictions, and willful omissions ... cobbled together by two hacks on a deadline.” It is reasonable enough to note that Cato’s Letters evince a naïve faith in the deliberative capacity of the people. But Dabhoiwala’s determination to discredit Gordon and Trenchard leaves one with the impression that he might somehow be in the secret employ of the early Georgian-era British government.
This animus is emblematic of a striking dimension of Dabhoiwala’s project. Rather than aligning himself with those who expanded the scope of freedom in the early modern era, he extends the benefit of the doubt to the conservatives, monarchists, and reactionaries who fought them at every stage. He argues that liberalizing speech reforms in the wake of the American and French Revolutions worsened “the age-old problems of misinformation, slander and abuse that had given rise to the now increasingly curtailed regimes of speech control.” However, Dabhoiwala defends the older restrictive approach to speech in service of the aims of 21st-century progressivism. When he can draw a connection between free speech and racism, sexism, or colonialism, however tendentious, he does so. He faults Cato’s Letters, for instance, for their “stark view of sexual difference.” The main evidence mustered to portray them as unusually regressive for their time is their authors’ belief in the primacy of the public over the private sphere, the latter being a more feminine domain.
Then there is his argument that free speech “buttressed white supremacy” in colonial North America. Dabhoiwala observes that many early liberals were pro-slavery or slaveowners themselves and that slaves were denied basic rights and liberties, but fumbles to make this into a meaningful indictment of free speech itself. It is unclear, for instance, why the fact that Trenchard’s estate posthumously passed to a plantation owner should serve as an indictment of the deceased. Meanwhile, he selectively interprets or outright elides counter-speech by slaves and abolitionists, many of whom were fervent advocates of a free press.
Dabhoiwala’s odd mix of sympathies is also on display in his attack on John Stuart Mill. He informs his readers that On Liberty, an “urtext of modern western liberal thought,” made “profoundly imperialist and intellectually flawed claims.” While emphasizing Mill’s colonial apologia, Dabhoiwala also hears out the criticisms leveled by the “brilliant, swashbuckling English lawyer” James Fitzjames Stephen, whose response to On Liberty was inspired by two years of disillusionment as an Indian colonial administrator. For Stephen, as he explains, “the essential difference was not between western and non-western cultures, but rather, in every time and place, between the ‘very small minority of the human race’ who were truly guided by reason and inner conviction, and the ‘great mass of men,’ who could be bribed or cajoled into believing anything.” Stephen’s vision of a global hoi polloi united in ignorance and in need of an educated caretaker class bears some similarities to Dabhoiwala’s outlook—though he would prefer the overseers to be of native extraction and nominally subject to democratic accountability.
“Dabhoiwala’s ire is reserved for the First Amendment.”
But much of Dabhoiwala’s ire is reserved for the First Amendment. He makes a good case that our modern interpretation of its language was hardly predetermined from the start. Had the text of the French Declaration of the Rights of Man, which was drafted around the same time as the Bill of Rights and featured a “balancing” approach to speech, reached the United States a few weeks earlier, the latter document’s wording might have been altered. In fact, most state constitutions from 1789 onwards took inspiration from the French approach, and in some cases copied it word-for-word. This, combined with the fact that the “selective incorporation” doctrine giving Bill of Rights provisions power over state laws was only devised in the 20th century, means that it was only in the 1960s and ’70s that an expansive doctrine of free speech truly became the law of the land.
Here again, Dabhoiwala echoes arguments made on the right—specifically, conservative critiques of the Warren Court’s judicial activism. “In a series of judgments during the 1960s and 1970s, the Supreme Court fundamentally changed its interpretation of the First Amendment,” deeming laws that restricted speech unconstitutional with few exceptions. Many of these judgments were passed in sympathy with the goals of the Civil Rights Movement. For instance, the seminal ruling New York Times v. Sullivan narrowed the bounds of libel law to counteract the segregationist Mississippi government’s extortionate lawsuits against activists. This and other cases may have advanced causes Dabhoiwala endorses, but they also legitimized “abuse, falsehood and defamation” in American public life. He never fully resolves this contradiction.
Some of Dabhoiwala’s most interesting research focuses on colonial laws in the British Raj prohibiting speech that “wound[ed] the religious feelings of any person.” Indians and colonial administrators alike cautioned that these efforts would backfire: “The result must be to foster bigotry, and to keep the religious animosity of sects at its height,” petitioned one British judge. And indeed, rather than stemming conflict between Muslims and Hindus, they incentivized it: slights that would have once been brushed off were now grounds for litigation, and the restrictions only became harsher over the decades as more groups demanded their day in court. By the 1920s, Dabhoiwala writes, “the battle over legal procedures and powers to punish ‘insult’ had become a powerful source of collective identity for the faithful of different sects.”
Yet he forgets this cautionary tale when offering his own prescriptions. The question of being pro- or anti-free speech is a false dichotomy, he repeatedly asserts; calling oneself an absolutist on the issue is just a way of “not having to think too hard about the real problems of speech, while simultaneously feeling morally superior.” Instead, it is better to ask questions of one’s regulatory intentions—“What is free speech being invoked for, in this particular instance?”—on a more finely grained level than what the First Amendment affords.
This is the approach Dabhoiwala admires in the European Convention on Human Rights, which has lately come under scrutiny for chilling speech across the continent. The ECHR approach, which “balances liberties against duties,” may result in a bureaucratic nightmare, he concedes, but “perhaps that’s a reasonable price to pay for attending to the real-world purposes and effects of speech in plural, democratic societies.” This can be read as a brief for what Ross Douthat has termed “managerial multiculturalism,” which seeks to preserve the coherence of increasingly fragmented societies by more tightly delimiting the bounds of acceptable discourse.
However, Dabhoiwala’s self-image frames speech regulation as a populist counterweight to “overlords of communication” whose “ultimate concern is with profit and market share, not with the public interest.” Disregarding the powerful interests that built the anti-disinformation industry, he characterizes its endeavors as “grassroots efforts.” He is right that powerful figures have cynically weaponized free speech rhetoric to spread lies. But the opaque maneuvering of bureaucrats and nonprofit administrators is hardly a superior manifestation of democracy.
It may be true that, as Dabhoiwala posits, the First Amendment is a “historical accident” that we’re “stuck with.” But it is a happy accident. Liberals should be reminded of that in the wake of the Kirk assassination. On a podcast released on September 15, Attorney General Pam Bondi declared: “We will absolutely target you, go after you, if you are targeting anyone with hate speech.” Shortly thereafter, she walked back her remarks in the face of pushback from the left and the right. It was encouraging that even many who have found the celebratory reactions to Kirk’s killing on the left abhorrent still recognized the danger in criminalizing them. It is also reassuring to know that the Supreme Court has a clear precedent to act upon in response to further escalation by the Trump administration. The First Amendment provides a vital, if imperfect, stopgap against state encroachment on our common liberties. But the Dabhoiwalas of future generations may find in Bondi another historical source to cite approvingly.