Sean Elliott (4:27)

I imagine most people, if you ask them to define free speech, the simplest, most intuitive answer you're going to get is that it's the absence of censorship. Simple, neat, clean. Do you like that definition? Do you think it's incomplete or misleading?

Farah Dabarbala (4:45)

Absolutely. It's very seductive. It's how we all like to think. And it's because we think of censorship as something unnatural, right? We think censorship is unnatural. We can see that it takes different forms and different times and different places. We can see it, we can spot it as an natural thing. We can describe it. Historians do this all the time. And then we presume, here's where the fallacy creeps in. We presume if you just get rid of censorship, then you expand freedom of expression, you get more free speech. Now, at a certain level, that is true, but it's a very incomplete answer. Because freedom of speech itself as an ideal and in practice always has a shape of its own. It's always to do not just with the words, but who is speaking to whom they're speaking, what the context is. Some people's freedom of expression is much greater than that of others, even within the same society. Let me just mansplain to you. The voices of women throughout history have been Less, less easily taken seriously than those of men. And that's, that's just a simple but very important example of how the ideal itself and the practice of free speech is never just straightforward and neutral and just arises out of getting rid of censorship.

Sean Elliott (5:56)

So your argument is that. Well, part of your argument is that free speech has never been censored. A coherent ideal. And it really can't be a coherent ideal because it denies two very basic facts about real, actual communication. And the first is that it's an action in the world. It's not separate from action. And the second thing is that it's context dependent. Now that's a little abstract. So lay out what you mean by that.

Farah Dabarbala (6:28)

Well, the first thing is easier to understand. I mean, speech is an action in the world. Voltaire, the great 18th century Enlightenment writer, once put it to a friend in a letter, you know, I write in order to act. We all speak and write and publish in order to have an effect in the world. That's what communication is for. Even when you're just talking to yourself in the shower, you are trying to persuade yourself or talking to yourself, it's always an effect.

Sean Elliott (6:52)

Is that what I'm doing?

Farah Dabarbala (6:53)

I don't know about you, I've not been in your shower, Sean, but I presume so. And so freedom of speech is an artificial doctrine that has to deny various things. And the harder the doctrine of free speech is, the more it has to deny them. And the American doctrine is the hardest of all and simply says there's a difference between speech and action. That's not true. Speech is an action. It's a peculiar kind of action. Mostly it's fleeting and it doesn't have very big effects, but it can have serious effects. That's the first one. The second thing is easier to grasp. If you don't think, don't start with free speech. You start with speech. All kind of communication, the meaning of any utterance, whether I'm speaking to you or I'm writing or I'm broadcasting, whatever is determined by the context. If I'm telling a joke, you need to know it's a joke, otherwise you might misunderstand it. If I'm the President of the United States saying something, it has a different effect in the world if I say that in a public broadcast than if you and I are sitting in a bar late at night just tossing ideas around. So in all sorts of ways, human communication is incredibly nuanced. It's exquisitely context dependent in terms of the effect and in terms of the Meaning and people misunderstand each other all the time. A lot of free speech, crises, battles, so forth, a lot of cancel culture, all that kind of stuff is often about people misunderstanding each other or taking umbrage at something that was intended in a different way. All this, you know, all the current debates about speech about Palestine. Is it anti Semitic to call out the state of Israel? Well, you know, sometimes yes, sometimes no. And that means that free speech, if you think of it just as the right to say X words, is artificial because the meaning of those words is going to be different depending on who's saying them, where they're saying them, why they're saying, what's their intention is in saying them. You know, a joke about rape told by a rapist is a very different thing from a joke about rape told by a survivor. Jokes about antisemitism can be made by Jews in a different way with different effects in the world than by anti Semites. So all these ways, it's always very, very difficult to make hard and fast rules just based on content.

Sean Elliott (9:13)

To be a free speech absolutist, do you think you have to deny these two facts about communication? Do you think you have to deny that speech isn't in fact a form of action and that it doesn't vary so much based on context?

Farah Dabarbala (9:27)

There is a third thing that follows from speech being a form of action, which is that sometimes it can be a harmful action. It can be harmful to other individuals or can be harmful to the public good. Like spreading lies about other individuals can be dangerous to them, can be destructive to public discourse. And societies throughout history have known this very well, which is why they always took utterance very seriously and regulated speech in the era before the modern world, in the 18th century, when our modern concept of free speech is invented. So if you say you're a free speech absolutist, it does two things. It makes you feel incredibly virtuous because you are for freedom, you're against censorship. You seem to have occupied the highest moral plane of all, and it's virtuous. And it also allows you not to think about all the real problems of communication in the world. It allows you to just wave away questions of harm, questions of context, questions to do with the real effects of communication in the world. And those can be very serious. So I don't think it's a coherent position at all.

Sean Elliott (10:33)

Certainly a challenge you'll get, right? Especially when you make the point about speech being equivalent to action, right? I mean, someone will say, well, words.

Farah Dabarbala (10:44)

Speech is equivalent to all action.

Sean Elliott (10:46)

Right. But like, let me try to give a. Yeah, let me steal man in the best I can. Right, okay. So I guess the argument would be, look, words aren't the same as actions. You know, there's a whole sticks and stones may break my bones thing, right?

Farah Dabarbala (10:57)

Yeah.

Sean Elliott (10:57)

But clearly on some very obvious level, me calling you a racist or a pedophile is offensive and shitty, but it's not the same thing as me punching you in the face or shooting you in the leg. So can we really collapse this distinction between speech and action without collapsing something?

Farah Dabarbala (11:14)

Speech is a particular kind of action, okay? It's a particular kind of action. Most of the time it's fleeting and trivial. But if you set out to not just call me a paedophile to my face, but spread the lie that I am a paedophile or in some other way, completely reprehensible, and you went out and you broadcast this and you put a whole series on YouTube. This is a attempt to defame someone that has real effects in the world, and it's more powerful if you're doing so to someone who's not really a public figure, like me. If you set out to defame me, that would harm me in the world, harm me much more than if you came up to me and punched me in the face once and walked off. So it's not just about individual actions. It's about the repetition of them. It's about the intent behind them. It's about their cumulative effect in the world. And that's equally true of. Of what people used to call group libel. If you go around spreading the lie that people of different skin color are inherently of different intelligence and white people are intelligent, inherently more intelligent than others, and that, you know, people of other skin colors shouldn't be given jobs, that kind of insidious, racist conspiracy theory is pernicious and harmful in the world, and it harms people the more, the less powerful they are. So again, we need to think about what's going on here. Is it me satirizing the President of the United States? Well, he can take that. Or is it punching down in a really horrible way towards individuals or groups of people who are already disempowered in our society, which further causes their disempowerment.

Sean Elliott (12:52)

How do you mark the border between offense and harm? You know, I personally think speech that offends has to be permitted.

Farah Dabarbala (13:01)

Absolutely.

Sean Elliott (13:01)

Speech that harms.

Farah Dabarbala (13:03)

No quibble with that. No quibble with that at all.

Sean Elliott (13:05)

Right. And speech that harms is a more difficult question. Right. But that line is always going to be hopelessly contested, right? I mean, is this just a continual negotiation and the price of living in a free society?

Farah Dabarbala (13:17)

It is. It is. We shouldn't be afraid of slippery slopes. We constantly are balancing on slippery slopes and negotiating terms. That's the price of living in a free but democratic society. That's the first point. The second point is you need to make the boundaries as capacious as possible. You really need to give people the greatest latitude possible. And harm should be very narrowly defined because one of the reasons for that is once you have a law, people are going to be pushing against it all the time and you're going to get inconsistent judgments and people are going to weaponize the law in all sorts of ways. We see this throughout history. I mean, laws about speech are very difficult because they're clumsy instruments. They can't ever fully capture all the nuance of communication. The right question to start with is usually, what is free speech being invoked for in this particular case? Is it, for example, freedom of expression for art or literature or some other form of imaginative endeavor? In that case, we should allow the greatest possible latitude offence. No problem at all. It's difficult to see how a work of art can harm individuals, except if they're individually slandered or defamed in some way. What's not an issue, what has nothing to do with harm or right or wrong in freedom of expression in artistic matters is truth. Literal truth has nothing to do with whether or not works of art and novels reach their aim. On the other hand, take democratic discourse, political speech, there truth is really important. If we allow our political discourse to be taken over in an unchallenged way by lies, conspiracy theories, untruth, and we don't have any guardrails against that, then we're not going to have a healthy democracy. The United States, looking from outside, is a horrible example of a cesspool where democratic discourse is completely degraded and the difference between truth and fact is no longer upheld in other countries. On the other hand, people do believe that you shouldn't just be allowed to run riot with untruth and slander, that evidence and facts and truth matters in democratic discourse. So there is a different criterion of harm. Similarly, I mean, we could go on. There are many other different kinds of speech arena. There are many other different kinds of possible harm that we could talk about.

Sean Elliott (15:52)

It really is quite amazing, isn't it, how people's position on harmful speech tend to vary based on where they happen to sit at that moment in the power hierarchy.

Farah Dabarbala (16:07)

Right.

Sean Elliott (16:08)

Like the people fighting for free speech often end up suppressing it once they're in power.

Farah Dabarbala (16:14)

I mean, that has always been the case. That's the case.

Sean Elliott (16:17)

It really is. It's almost like it's a kind of.

Farah Dabarbala (16:19)

Natural law, a weaponized slogan. That's what it is.

Sean Elliott (16:22)

And so it's just fascinating to me, Farah, because the American left, as you know, was culturally dominant for a long time, and the right somehow became the free speech warriors. And now look at what Republicans are doing. Look at what the Trump administration is doing. Literally using the power of the state to punish and stifle speech, defunding universities, deporting dissidents, abolishing curriculums. I mean, the hypocrisy is quite impressive, I have to say.

Farah Dabarbala (16:51)

Yep. But as a historian, I have to say it's unsurprising because sadly, because it's an incoherent slogan, because it's always been weaponized. This is a perennial problem.

Sean Elliott (17:14)

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Farah Dabarbala (20:39)

Yes. I mean in the whole of the modern world really before the 18th century, people thought very differently about speech and free speech. Their main concern was to limit the harms, possible harms of free expression towards individuals or towards the community. And they're very concerned. And there's centuries and centuries of history that show this. If you just allow lies and conspiracy theories to circulate freely, then what will follow are riots and pogroms and murders and chaos and disaster. And there are many sad examples of this throughout history. So out of that comes a kind of form of speech regulation, the first law passed in the English speaking world against false news. That language, false news is passed in 1275 in the middle ages. So this is an age old problem that people know about. Then what happens is the birth of modern ideas of free speech at the beginning of the 18th century in England. So there's an explosion of new kinds of print, especially newspapers, which are really a new form of very fast paced political news reporting. And you have a system for the first time with fixed political parties who are battling back and forth through these media. So this, it's a very reminiscent of our modern world. And in this is born the slogan Liberty of the press. And everyone starts to get addicted to fast paced news and they start to think, well, liberty of the press, freedom of expression is a good thing. It makes Us better than, you know, these slavish countries where people are censored, blah blah, blah. And so it becomes a slogan that everyone agrees on. They all agree that liberty is good. But licentiousness, it's an 18th century word. Licentiousness means abuse of liberty is bad. And constitutions get written soon thereafter that enshrine this as a right, which means the right to responsibly exercise freedom of expression is a good thing.

Sean Elliott (22:36)

Well, that's responsibly right. I mean, when I use the phrase, has it ever been, Was it ever thought of as an inherent right? I guess what I'm really talking about is was it ever. Did people think that that meant that the right to free speech meant that there were no limits, that you could say and do anything? Because it's interesting, like your book is, is, is largely about the modern history of speech. But you know, you can go all the way back to ancient Greece where they, where democracy was invented.

Farah Dabarbala (23:03)

Only in one place and time in the whole history of humanity have people started to articulate this essentially incoherent idea. And that's in the United States in the past few decades. And that has been made possible by what I talk about in my book is what I call the libertarian swerve of the Supreme Court in its interpretation of the First Amendment since the 1960s. So since the 1960s, in a noble attempt to make the laws of speech simpler and clearer. Everyone wants them to be simpler and clearer because balancing on slippery slopes is extremely tedious and tiring can also lead to very unsatisfactory outcomes. In an attempt to make it clearer, Supreme Court has gradually come up with this ever sharper, harder, fixed definition of what the First Amendment allows. The problem with that is that it widens the gap between the doctrine of free speech and how speech in the world actually works. And it opens the door to all sorts of harms that then are legally permissible. Spreading lies about people allowing race hate, all sorts of things that people who look at the American public sphere from outside America think are reprehensible and ridiculous.

Sean Elliott (24:25)

Well, let's talk about the modern idea of free speech. The version we're most familiar with today. What is it? Where did it come from? I think most people have probably never heard of Cato's letters. So this is, you know what, I shouldn't insult the audience. This is a very erudite, well read audience. So I'll accept them. But let's start there, right? What is the role? What are the Cato letters and what role they play an unbelievably outsized role.

Farah Dabarbala (24:55)

It's really extraordinary speech. So I explained earlier that when liberty of the press and freedom of expression first become these slogans that people bandy about, it's basically a very loose kind of untheorized notion, because everyone is aware that the explosion of print has just made worse all the problems that previously existed in the universe of communication. That is to say, conspiracy theories, lies and untruth, people spreading falsehoods about each other for political or financial gain. That was a problem before. The explosion of print just makes it worse. And all the serious journalists who are in this world in early 18th century London, like Daniel Defoe, Jonathan Swift, they talk about this all the time. And there's some wonderful quotes I want to read you out. Jonathan Swift, which is still true, remarked about the dangers of allowing untruth in the public sphere. Falsehood flies, quote, falsehood flies. And then truth comes limping after it like a man who's thought of a good repartee long after the party's over. So lies spread really fast. It's very, very hard to track them down and then to nullify their effects with poor, limping, slow moving truth. So everyone can see this problem. And then in 1721, this extremely original set of essays is published in a column in the London newspaper. And the column is called Cato's Letters. And these guys who are writing CATO's letters are two anonymous journalists. They're very obscure, no one's ever really been able to find out much about them. And they're putting forward this column every week, which is essentially an attack on the government of the day, criticizing its economic policies, criticizing its politics, and rehearsing various kind of well known Whig theorists of politics, like John Locke, older ones like Machiavelli. They're kind of giving you bite sized Republican theory, as it were. And in the middle of this, which is all derivative and secondhand, there's this very original theory about free speech which says free speech is basically an absolute right. Free speech is the most fundamental right of all. It is the foundation of all liberty. The moment that governors try to restrict freedom of expression, you know that they're on a sliding slope to tyranny. And in order to make this case, they also then say, well, speech is not an action in the world. It can't really cause any harm. If it does cause harm, that's outweighed by the free. All the platitudes that people now, especially in America, take for granted.

Sean Elliott (27:39)

Did they have partisan motivations in writing this? Did somebody hire them to write this?

Farah Dabarbala (27:43)

So I. Cadius Lettuce is very well known text amongst scholars of this period. And I started my work on American free speech, thinking I will not find out anything new. But I did early on realize that as all previous scholars have noted, the First Amendment comes directly out of Cage's letters. Cady's letters are the most influential political text in North America in the 18th century. All the revolutionaries and the patriots read this and use it when they're drawing up their decorations rights and so on. But no one had ever been able to figure out why they come up with this original theory. Why are they not talking about the media being corrupt? Why are they not talking about the dangers of partisanship, et cetera, et cetera? And no one had investigated this. And so I started digging and it was the most extraordinary story.

Sean Elliott (28:27)

So first of all, I didn't know it.

Farah Dabarbala (28:29)

First of all, no one knows it. I mean, I'm quite proud of this discovery. Their theory is full of holes. It's not really a theory. It's mainly a defense of their own practices. That's why they're saying governments should never be allowed to censor anything that is written because they want to continue attacking the government viciously. They don't talk about the media because they are themselves corrupt, partisan hacks. And they full well know that everyone is writing for money and switching sides for pay and so on. But they just ignore this because it wouldn't fit into their scheme. In their scheme, the public opinion is always united, the people are always right. Governors are always trying for tyranny. It's a very simplistic, you know, load of really dubious nonsense. But the really interesting thing I found out, not only is this a justification what they're doing, but they themselves are deeply complicit in this corruption. They are writing this whole column in order to get noticed by the government and then to be bought off by the same people they're attacking. So the guy who writes these splendid, you know, the people are always right and their freedom of speech should never be restricted. Thomas Gordon, a few months into doing this, he starts secretly writing for the government as a kind of apprentice hack for them, where he writes columns saying exactly the opposite, that people are easily deluded. You know, mob rule should not be allowed. The governors know what they're doing. And then he switches sides and they're a mercenary. He's completely mercenary. They. They stop Katie's letters, they make a deal with the government. He becomes the prime minister's chief propagandist. He goes rich and fat in the pay of the government. Now this is an extraordinary story, but the problem is that their text lives on and it's already been taken up in America and no one can see these holes in it. It's a fantastic oppositional text. If you're trying to attack the government or the British Empire and claim that your voice is being suppressed and they are just tyrants, it's made for that. So it becomes very popular and important in America. And then these kind of half formed absolutist ideas make it into the rhetoric of American declarations and finally into the Constitution.

Sean Elliott (30:42)

We are making our way to America. I do at least want to mention another very important figure in this history, and that is John Stuart Mill. He's maybe the most famous thinker associated with modern free speech ideology. Very famously wrote the book On Liberty. Everyone who goes to a political science program in this country reads it. What is his role in this?

Farah Dabarbala (31:06)

My book is a global history of free speech. That's partly because I want to show how and why we've ended up in the present with such divergent views. But it's also because this modern concept of free speech is essentially a European idea that's invented in the 18th century by the same kinds of people who then go around the world telling other people to shut up. Women should shut up, brown people should shut up, Natives should shut up, slaves should shut up, black people should shut up. And you see this playing out across the world. And I became very interested in the nitty gritty of how that actually works in the Americas, in the Caribbean and in India. And John Stuart Mill is a key figure in that because he is not only a great, great liberal thinker, he's not only that, but he is also a lifelong senior administrator of the Indian Empire from London. He never learns any Indian languages. He never goes to India. This is par for the course for Indian for rule of India in this time. But anyway, the two things are connected because in On Liberty he puts forward a really profoundly original and very influential new way of thinking about free speech. And I've read this text many times and I was surprised to find when I went back to it for this book that his theory of speech really doesn't stand up, even though we all kind of rehearse its platitudes and use it to justify our own notions of speech. So let me explain that. What's original about his theory is it's the first theory that takes the individual speaker as its basis until Then one of the ways which people had, theorists of free speech had, had got around the problem that people actually disagree is to claim that public opinion, if left to its own devices would always agree ultimately because the truth in any matter would become evident and they would all move towards it and consensus would emerge. Of course that doesn't. The world isn't like that.

Sean Elliott (33:09)

This is the fantastical, wonderful, glorious marketplace of ideas.

Farah Dabarbala (33:13)

Indeed, that's one interpretation, so called marketplace of ideas. And Mill says that's not the way to think about it. Or that might be a different way to think about it. But I want to talk about how important expression is to your own self as an intellectual, as a thinking, breathing human being living life. And the bigger thing that he wants to advocate for is that people should be left to live life as they wish they should be. His great phrases, allowed experiments in living. If you want to go out and paint your house green or wear strange clothes or engage in sex without being married, you should be allowed to do that. His only criterion is does it affect, does it harmfully affect another person? That's where your liberty ends. That's a great ideal. We should all subscribe to that. We still rightly read it for that reason. But in order to bring speech into it, he makes a really strange. Well, he smuggles past his readers two things which I think are connected. First he says that speech, expression in the world, at the start he has to say this absolutely affects other people. But then when he comes into defending his theory of speech, he says actually speech is like thought. They're so closely combined that we can't separate them out. And that's all he says. And then he goes on to defend essentially freedom of thought. And of course that's a problem because thought is preeminently not something that harms other people. But the expression of any kind of thing can affect, does affect other people, is meant to affect other people. That's usually what it's for. So that's a really deep philosophical problem. And the other really interesting thing about On Liberty and his theory of speech is he says of course, this freedom of expression that should be almost limitless because it's about individual self fulfillment only applies to higher cultures. Only advanced civilizations are able to discourse rationally and thereby not cause harm. I think that's the basic idea is that if we have grown up adult civilizations, people will talk to each other and they won't go around spreading hate or creating pogroms or slandering each other and spreading conspiracy theories. But it absolutely cannot apply to lesser civilizations. And by that he has in mind India, China, basically what we would call the non Western world. Because he has this idea that those people aren't able to use speech responsibly. They're like children, in his words. And that, I think, is a glimpse into the fact that he does see that speech can cause harm if left completely unregulated. People will act on their passions as well as on their reason. They will attack each other in all sorts of verbal and written and published ways that can cause harm. And he's very concerned about that in India because he thinks those people can't handle it. He doesn't think it's a matter for concern in advanced countries. And all his early critics call him out about that. You know, they say it's nonsense. Of course, the English public isn't inherently rational or much more so than the Indian reading public. That's a nonsense. But those other critics don't write as well and their texts haven't survived. And so we still read On Liberty. But I'm afraid that too, as a theory, doesn't work.

Sean Elliott (36:39)

I'm also not sure he really wants to grapple with how easily lies and bullshit and untamed rhetoric can produce even worse kinds of conformity. I'm not sure he ever resolves that.

Farah Dabarbala (36:50)

No, he doesn't. You're quite right. And there's a continual tension between these bold headlines that he puts out there, and those are the things we still remember, and then his continual kind of quiet qualification of things in the course of the text. And so he has to grapple with the idea that sometimes speech can be harmful. The idea that you could make a mob riot through speech is one of the examples that he gives as impermissible speech. But he's very reluctant to acknowledge this as a fundamental problem with his theory in general, which I'm afraid it is.

Sean Elliott (37:37)

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Farah Dabarbala (41:50)

Yeah, it's a really appealing ideal. I wish that we lived in a world that corresponded to that metaphor. But let's just think about what the metaphor implies. The metaphor implies that, say, in political discourse, as citizens going around trying to decide on political matters, we really lived in a marketplace of ideas. That would mean that we all had an equal access to truthful information, that we were debating things on the basis of evidence and truth, that everyone's viewpoint was equally grounded and valid, and that everyone had equal access to the facts. That's exactly the opposite from the kind of, you know, sewer of untruth and mediated partisan information that we are hosed down with when we try to venture out into the public sphere.

Sean Elliott (42:50)

Are we, we being America, are we basically absolutist relative to basically everyone else in the world? I mean, how exceptional is. Is our approach?

Farah Dabarbala (43:00)

Yeah, it is these days, pretty exceptional. And actually, American attitudes didn't used to be so different from those of the rest of the world. From the late 18th century onwards, all the way through to the 1940s, Americans take basically the same kind of balancing approach to freedom of expression as those in the rest of the world. There's a wonderful discovery that's one of the chapters of my book about how in 1789, just a few weeks after the text of the First Amendment is agreed in New York, before it's been even ratified by all the states, news reaches the east coast of America of the equivalent text that has been agreed in Paris by the French revolutionaries, the Declaration of the Right to Man. The French Declaration says every citizen has the right to freedom of expression and liberty to press, but also the responsibility not to abuse it. It's an explicitly balancing model that brings in the fact that this can be abused, that there can be harms caused by free expression, and that there's an optimistic. And it so happens that at that very moment in 1789, the citizens of Pennsylvania are revising their very influential Declaration of Rights, their state declaration and Constitution, and They incorporate the French text into their new state declaration. That becomes the state constitution's way of defining. And after that, after that, every single other state that revises its constitution or is created with a new constitution equally takes the balancing approach, not the absolutist rhetoric of the First Amendment as its main model. So all the way through to the 1940s, that's the case, unfortunately. What happens to break this consensus in the 1950s and after that is the outbreak of the Cold War. Because at that point, American policymakers, American citizens, American politicians, lawmakers, all retrench back into the idea that in this global, titanic struggle between totalitarian communism on the one hand, and free societies on the other hand, we have to stand for individual freedom. And anything that strikes of thinking about the public good or the collective rights of the people smacks of this alien and undesirable way of thinking. And so the Supreme Court takes the lead, or gradually the Supreme Court shifts towards the position that actually the First Amendment says everything that there needs to be said. Balancing is a kind of imperfect and un American thing to do. And of course, there are these inherent problems with that approach, as I talked about earlier. So they're also trying to come up with something that is more robust.

Sean Elliott (45:45)

Well, let me defend the First Amendment for a second here. It has been a pretty good safeguard against state overreach. And even if it is a historical accident, it has protected dissidents, journalists, civil rights leaders. I mean, I guess let's say North Korea is at the opposite end of the free speech poll, and maybe China is closer to the midpoint. Other democratic systems in Europe are closer to the US but certainly more censorious than we are. I prefer the messiness of our model over all of those. I think I'd rather live with the chaos of too much speech over the dangers of too little. But I admit that the digital era has made me slightly less sure about this.

Farah Dabarbala (46:34)

No, no, I think it's a perfectly valid starting point to have a great discussion about. I mean, both of these models are flawed.

Sean Elliott (46:42)

There's no perfect model.

Farah Dabarbala (46:43)

There's no perfect model. But the thing about the balancing model is it is more attuned to the realities of human communication, how it works and what effects it has in the world. The difficulty I have with the abstractions of modern First Amendment doctrine is that it willfully refuses to engage with the reality that speech is an action in the world that can cause harm. And it does. It does cause harm. And the problem is now that this has been this, this mantra, this it's, you know, it's, it's a different dogma, but it's been embraced by giant corporations, American media corporations, social media corporations that now control online discourse, not just in this country, but around the world. And we know that they don't care about moderation and regulation, even when it demonstrably causes.

Sean Elliott (47:38)

Well, Farah, haven't you heard that they're not publishers, they're just platforms.

Farah Dabarbala (47:42)

That is exactly, that is exactly the source of our own inability to grapple with this, and we should be talking about them as publishers. The difficulty here is partly a legal one, which is every single previous form of mass communication that was invented since the printing press, lawmakers and politicians and citizens have seen that this is something that has great power, that it can shape public opinion for good or ill, whatever. And so radio, television, broadcasting, cinema, all these things, when they are invented, have, in the United States, as elsewhere, bodies put in place to regulate what you can and can't say in the public good to stop untruth, harmful expression, defamation, etc. In the 1990s, when the laws were put in place that still hold regulating the Internet in the United States, they include this infamous clause, section 230 or 240, I can't remember now, which says, on the one hand, Internet providers have an absolute right to censor everything that anyone posts on their platforms, and on the other hand bear no responsibility at all for anything that is said. And that gives them carte blanche to be irresponsible and then backed up with these platitudes about how of course, speech sometimes is harmful, but the only way of dealing with it is more speech. They get away with not being treated as publishers, but they are now the most powerful publishers in the world of not just social media, but political media too.

Sean Elliott (49:17)

We have a law invented in a world where fucking pamphlets were the dominant mode of communication now being applied to the digital world.

Farah Dabarbala (49:26)

Yes, I mean the digital. The digital law itself, the history of that is significant because it's put in place in the 1990s at the moment of peak belief in free markets as the solution to everything. It's the end. It's after the fall of the Berlin War, the collapse of the communist empire. American lawmakers do honestly believe that the more government can get out of the way of everything, the greater truth and happiness and prosperity will emerge everywhere. And that's a dangerous thing to have set as a fundamental precondition for greedy corporations that now earn trillions out of misinformation.

Sean Elliott (50:04)

But here's the thing, and I'm sure you've heard it a thousand times. Okay, let's say I agree with everything you're saying. Do you want tech platforms deciding what is and isn't acceptable speech? I mean, the problem here is we're now in the world of values, right? This isn't math, it's politics and ethics. And I understand, understand the people who don't believe that anyone can reliably or fairly or neutrally make these judgment calls because those decisions will always be influenced by power and profit or the ideologies of the regulators themselves. So, you know, they'd rather have no thumbs on the scale and leave it to the marketplace. As much as I hate that the.

Farah Dabarbala (50:43)

Marketplace, there is no such thing, I.

Sean Elliott (50:45)

Can'T get rid of it.

Farah Dabarbala (50:46)

It has to be a.

Sean Elliott (50:46)

You know what I'm saying that, right.

Farah Dabarbala (50:48)

All markets require regulation and guardrails to work, otherwise they don't work. That's why we have them for medicines, that's why we have them for cars.

Sean Elliott (50:54)

You know, but concretely, what do you do? Right, concrete. We all agree that they have to reg.

Farah Dabarbala (50:59)

I'm sorry to disabuse you of your idea that these platforms are not currently moderating anything. That's what they do. Their algorithms are precisely moderating everything all the time in order to maximize their profit. Okay, so they are publishers, they are moderating. It's expensive and time consuming and annoying for them to have to do so more effectively than they do. But hey, if you don't want to do that, get out of the business and make your money somewhere else. And if you want to operate in other cultures where they have different norms, then you need to pay attention to those norms. So that's, those are just basic rules about, you know, business. But secondly, I think it is a hard problem. But just shrugging and saying it's a hard problem, therefore we can't make any rules at all is not a satisfactory solution. The place where they are trying to grapple with this in the most sophisticated way so far is the European Union, which has passed a series of laws to grapple with these issues. And the basic model there is, first of all, it's not governments that have any regulatory power over anything. You have to create kind of arm's length, independent, non partisan bodies that then try to act in the public good. And again, when you say the regulators might have their own biases, you're thinking about a kind of hyper partisan American world which the current administration is now trying to create by destroying what little exists even in this country of that kind of model, but it is a good model. You create non partisan bodies of oversight that try to regulate these media in the public good. Okay, secondly, all that the European law asks of platforms is that they are upfront and transparent about how they regulate. What are your rules of moderation?

Sean Elliott (52:48)

At minimum, that should be.

Farah Dabarbala (52:50)

And that's a minimum. And everyone can see that they are censoring. We just want to know what are the rules. And then secondly, we want to know. We want to see. Want you to provide evidence that you're applying these rules transparently and consistently so that people are treated equitably. Okay, I can see that people from across the political spectrum have real issues about, you know, the black box that is the algorithm of Facebook or whatever or Twitter or X. And that's understandable as a society. We don't need to put up with that. So that's the second thing. And then thirdly, it should be proportionate to the power that the platform has. If you're some tiny startup with 15 people talking to each other online, you don't need to be hit with a giant amount of regulation. If you're a giant corporation making trillions of dollars, Mr. Zuckerberg, yes, you can afford to put resources into that at the scale that's needed to make sure that your platforms are not causing murder and mayhem around the world.

Sean Elliott (53:48)

I guess we've reached the what now? Part of the conversation. You got to tell me, what would you like us to do differently here?

Farah Dabarbala (54:01)

Equally intelligent people in the past have thought about these questions a lot and in more sophisticated ways than we currently are thinking about them. The way that. The reason, one of the reasons that free speech has become such a hot topic in the last 10, 15 years is that we ourselves are living through a new global media revolution. All the rules are up in the air.

Sean Elliott (54:21)

That's why the old, which always happens every time you have a revolution in media technology.

Farah Dabarbala (54:26)

Exactly, exactly. So we need to be nimble. We need to also learn from all these great thinkers of the past and practices that we lose sight of. The basic point is our notions of free speech and how we think about them are too simplistic. They're way too simplistic. They don't, for example, as we've been discussing, think about the media. They don't think about free speech as being more than one thing. They don't think about free speech as having its own shape, being about power, about being about whose voices are heard, whose voices are not heard. So we're never going to be able to agree about everything. But we can have slightly more sophisticated discussions about the boundaries of legitimate freedom of expression if we try to have slightly more sophisticated conceptual approaches to it. We have to think, what is the freedom of expression for? If it's about politics, what is it for? Well, it depends on what kind of discourse we're talking about. If it's about art and imagination, then it's about making people think. It's about, you know, getting inside people's minds and doing exciting things with their brains. But if it's about democratic discourse, if it's about civil society and talking to each other as citizens, then in order to do that successfully, we do need to think about what the correct limits are. And we do need to take seriously the problem of harm. Because throughout history, harmful speech has caused bloodshed and murder and riots and pogroms. And the last time people thought seriously about these questions was in the 1940s and 50s. And that is because of what happened in the 1930s. They were very concerned about that. We should be equally concerned about what happens in the world today. How speech can be used to demonize people, how it can be used to provoke real harm. Not just in a kind of American, it's immediately inciting me to do something violent, but in a more pernicious way, corrupting our public discourse and not allowing people to be treated with equal dignity.

Sean Elliott (56:31)

If I were to put a map of the world in front of you right now and ask you to point to the country, that's the society that's doing this the best, right? That's managing all these tensions and all these contradictions, all these trade offs. Where's free speech being done the best? Is there a model?

Farah Dabarbala (56:47)

No, there isn't, I'm afraid. That's part of the, the.

Sean Elliott (56:49)

Oh, come on. Not one, no one.

Farah Dabarbala (56:52)

Everyone's. Not the United States, not actually Britain right now, because Britain is showing, you know, many signs of. No, what goes wrong. If you have too many laws and you allow the police just to interpret these.

Sean Elliott (57:03)

It's crazy.

Farah Dabarbala (57:04)

It's, it's very bad. I don't think there is any particular culture that I'd hold up as, as doing a particularly great job right now. But, you know, maybe that's just part of the messiness of human communication and how we try and deal with it on the ground. And it's not a bad thing to always be thinking it through and coming to different conclusions.

Sean Elliott (57:27)

I'm going to leave it right there. Once again, the book is called what is Free Speech? It is an excellent history. I recommend it. Farah, this has been great. Thank you for coming in.

Farah Dabarbala (57:36)

Thank you Sean. Really enjoy that.

Sean Elliott (57:46)

All right, friends, I hope you enjoyed this episode. I absolutely loved it. But as always, we want to know what you think. So drop us a line at the gray area@vox.com or you can leave us a message on our new voicemail line at 1-800-214-5749 and once you're done with that, please go ahead. Rate Review subscribe to the POD that helps our show reach more people. This episode was produced by Beth Morrissey, edited by Jorge Jest, engineered by Christian Ayala, Fact Checked by Melissa Herbert Hirsch and Alex Overington wrote our theme music. New episodes of the Gray Area drop on Mondays. Listen and subscribe. The show is part of Vox. Support Vox's journalism by joining our membership program today. Go to Vox.commembers to sign up and if you decide to sign up because of this show, please please let us know.

Podcast Announcer (58:50)

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Farah Dabarbala (59:23)

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Sean Elliott (59:42)

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