What the History of Free Speech Tells Us
Free speech requires the drawing of lines, and that is never easy
Last week, United States Vice President J.D. Vance used a speech at the Munich Security Conference — where the conversations are about external threats like Russian dictators — to pour more gasoline on the raging bonfire that Donald Trump has made of the trans-Atlantic partnership. The biggest threat to Europe, Vance declared, isn’t external. It is Europe’s own abandonment of “democratic values.”
I won’t go into the details, or the implications, or the staggering hypocrisy, or explain why I think everything Vance said was the lazy, blinkered, parochial, partisan, self-congratulatory twaddle of a man who spends too much time in the Muskosphere and increasingly sounds like Huey Long minus the charm and concern for poor people. Because that would be a political polemic. And I try not to do that. Mostly.
I only want to focus on one aspect of the speech, because I think what Vance expressed is a widespread belief, at least in the United States. And while it’s not entirely wrong, it is deeply misleading. It could even be dangerous in the hands of individuals with a demagogic bent, like, well, feel free to fill in the blank.
It is the belief that the United States is and always has been a fierce defender of the individual’s right to free speech, and this approach is the one right and true approach, and no believer in liberal democracy could possibly disagree under any circumstances.
As Vance declared about trends in Europe,
…to many of us on the other side of the Atlantic, it looks more and more like old, entrenched interests hiding behind ugly, Soviet-era words like ‘misinformation’ and ‘disinformation,’ who simply don’t like the idea that somebody with an alternative viewpoint might express a different opinion, or, God forbid, vote a different way, or, even worse, win an election.
Like all good political speech, that’s appealing on its face. Free speech and free votes: Who could be opposed? European governments, that’s who, according to Vance. They regulate speech on the Internet. They forbid protests within small bubbles around abortion clinics. They prosecute hate speech. And so on. It is impossible to uphold democratic values while restricting free speech this way, Vance declared. The United States doesn’t do that. Neither should Europe.1
As usual, the right place to start thinking about Vance’s challenge is history.
To the time machine! Our first stop is 1798.
Why 1798?
That’s when the new United States of America passed the four Alien and Sedition Acts. The Sedition Act effectively made it a crime to criticize the government. And it was used with gusto. Many newspaper editorialists and pamphleteers were arrested and punished. Even a member of Congress was convicted and sent to jail for four months for writing about the president’s "ridiculous pomp, foolish adulation, and selfish avarice."
This bears underscoring because many American responses to Vance’s speech, like this recent essay by Tomas Pueyo, a Silicon Valley engineer with a huge Substack following, claim that free speech was baked into the United States from day one. “J. D. Vance’s argument is rooted in US tradition,” Pueyo wrote. “The British were extremely strong censors, limiting use of the printing press and any criticism of the crown. The Americans grew extremely sensitive to censorship.” That’s a lovely, self-congratulatory tale that works only if we ignore the fact that the Alien and Sedition Acts were passed and enforced by President John Adams and a generation of men who grew up under British rule and were notably enthusiastic about censorship.
The blunt truth is that, through most of American history, the First Amendment was not a strong shield for free speech, at least not by modern standards. And censorship was as American as Francis Scott Key.
Consider that until the Civil War was won, Southern states routinely passed laws forbidding the publication or distribution of abolitionist arguments, whether in newspapers or through the postal service. This was political speech. About a core political issue. And for decades it was subjected to overwhelming censorship.
And here’s a story to make the patriot’s heart sing: You and I know Francis Scott Key as the poet who penned The Star Spangled Banner about the “land of the free” where that banner yet waves. But in addition to being a poet, Key was a lawyer. And a slave-owner. And some of the highlights of his career were prosecutions of abolitionists for proscribed speech.
How was any of that possible in the teeth of the First Amendment? It wasn’t until 1925 that a court used the Fourteenth Amendment (ratified 1868) to rule that the First Amendment applies to states.
Another giant hole in the myth is obscenity. To this day, the First Amendment doesn’t protect it.
What is obscenity? That’s the rub.
The 1873 Comstock Act, which banned the postal service from transporting obscene material, forbade what we would consider obviously pornographic material, along with much less salacious material, but it also banned any publication, however clinical and dry, discussing contraception or abortion. In the same era, state laws effectively made it illegal to make any non-condemnatory reference to contraception or abortion. Even arguing for the legalization of contraception or abortion could put someone in legal jeopardy through a significant chunk of American history, which is why Margaret Sanger was arrested several times and fled to Europe to avoid prosecution. (Oh, the irony!)
Censorship of obscenity, generously defined, was so prevalent in Boston — yes, in nice, liberal Massachusetts — that there’s a long Wikipedia entry about “banned in Boston,” which was a catchphrase famous at least until the 1970s that came to mean something like “so obscene you have to see it.”
And we still haven’t gotten to the high-water mark of American censorship.
That arguably came in 1917, when the United States entered the First World War. As historian Paul L. Murphy wrote:
Americans, committed through their president, Woodrow Wilson, to ‘make the world safe for democracy’ — a phrase which implied that the nation and its allies bore a responsibility to free the world to adopt America’s traditional ‘liberal’ commitment to liberty and justice — stood by on the domestic scene and saw liberty and justice prostituted in ways more extreme and extensive than at any other time in American history.
My favourite illustration — “favourite” meaning “most eye-popping outrage” — is the fate of Robert Goldstein, the producer of a movie about the American Revolution who had the misfortune of releasing his production one month after the US declared war. The movie depicted British redcoats committing atrocities, so Goldstein was charged with sedition. Why? Britain was America’s ally. Negative portrayals of America’s ally could harm support for the war and recruiting. Hence the movie was seditious. Goldstein was convicted and sentenced to ten years in prison. His conviction was upheld on appeal but the sentence was reduced to three years. The courts also ruled that the First Amendment did not protect movies — a ruling that wouldn’t be overturned until 1952.
I could go on. And on and on. The Red Scares of 1919 and the early 1950s resulted in both censorship and fear-induced silence. The first decades of radio were rife with censorship, though it was usually hidden behind a veil of hypocrisy that fooled nobody who worked in the industry (a subject I hope to write an essay about in the future.) Even into the 1960s, serious literature was banned on grounds of obscenity, or had to be published in bowdlerized form, which is why, in Norman Mailer’s classic The Naked and the Dead, dying infantrymen screamed “fug!” rather than “fuck!”
And have you ever noticed how former Fox News host and current Secretary of Defense Pete Hegseth likes to wear pocket squares with the Stars and Stripes and suit jackets lined with the American flag? In the late 1960s, hippies started wearing the flag to annoy the squares because, while it wasn’t illegal, using the flag as an article of clothing contravened the non-binding United States Flag Code. This got many a hippie clubbed for flag desecration. In 1968, police even tore an American flag shirt off the back of Abbie Hoffman at a public protest.
All that said, First Amendment protections today are quite stringent — more stringent than in other liberal democracies.
But that is only thanks to relatively recent jurisprudence, in particular, a 1969 ruling that elevated protection of political speech to the highest level — making it sacrosanct unless it threatened “imminent lawless action.” Ironically, this expansion of protection was carried out by liberal activist judges who are cursed to this day by conservatives like J.D. Vance. Similarly, from the 1970s to the 1990s, shifting public attitudes pushed back the boundaries of what constituted impermissible obscenity, over the objections of conservatives. While it was once unthinkable that a pedestrian who uttered obscenities in public would not be at least warned by a police officer, the polarity flipped and it became unthinkable to imagine police arresting someone for the same behaviour today.
The lines moved. The lines are always moving.
And that is the point.
If I may lay my cards on the table: I spent a good chunk of my career defending strong versions of free speech against well-intentioned efforts to improve society through censorship, particularly the drive to reduce hate by criminalizing hate speech. I think such efforts do little to accomplish their noble goals. They can even be counterproductive. Proposals to use censorship to deal with misinformation and disinformation, for example, are deeply misguided both because they will fail to solve the problem and because they foster distrust — “what are they hiding from us?” — that is as at least as dangerous as any misinformation or disinformation.
So on speech issues, I lean much more in Vance’s direction, to use the Vance vs. the EU frame.
But anyone who tells you these issues are cut-and-tried — that there is only one correct and principled position a democratic country can ever take and it is the position of the United States and Elon Musk today — is either a fool or is selling you something. J.D. Vance has a law degree from Yale so I’m pretty sure he was selling something in Munich.
Was the United States under Dwight Eisenhower in the 1950s a democracy? How about under Franklin Roosevelt in the 1930s? By J.D. Vance’s standards, the answer has to be “no.” These enemies of democracy deserved a tongue-lashing at least as fierce as the one Vance gave Europe last week.
What Vance and the like-minded refuse to acknowledge is that speech protection always involves the drawing of lines and if you spend a little time thinking hard and carefully about what that entails you’ll quickly realize it is never easy. Dig into the specifics and you always find more complexity than is evident on the surface. And that is the least of the challenge. The real difficulties arise mostly because competing values are at stake and those values are often vague and endlessly shifting — because they are built on social beliefs which are themselves vague and endlessly shifting.
This is why the history of American free speech protections is so instructive.
Over its long history, American speech protections have changed dramatically. And while, today, they are mostly maximalist, they did not start there, nor did they get there in a straight line drawn across two-and-a-half centuries. They evolved. Sometimes they expanded. Sometimes they contracted. Sometimes they grew in some ways while shrinking in others.
Like most history, it’s complicated and messy. Also like most history, it is contingent. Things could have turned out differently than they did.
If we recognize this, we should also recognize that other nations grappling with how to protect free speech are bound to come to at least somewhat different conclusions for the simple reason that are different. They have different cultures. Different politics. Different values. And different histories.
So, yes, it’s true that Germany provides less protection than the United States for political speech at the extremes. But it is not hard to figure out why. Unlike the United States, Germany was subjected to Naziism and Communism, the Gestapo and the Stasi. In fact, one would think Germany’s friends and allies would be grateful for Germany’s continued vigilance and determination to keep extremism at the margins. This is not to say the Germans have necessarily got the balance exactly right. But they are absolutely correct, as principled supporters of liberal democracy, to recognize that there is a balance.
But the likes of J.D. Vance aren’t interested in complexity and understanding other perspectives and competing values. So Vance not only gave a speech in a German city harshly condemning one of the modern world’s great liberal democracies, he expressed not a scintilla of awareness that Germans have a uniquely troubled past that any German democrat worthy of the name must never forget.
Following that ignorant and arrogant performance, Vance met with the leader of the far-right AfD, effectively giving the endorsement of the government of the United States to a party which the great majority of Germans considers beyond the Pale — one week before a national election.
That was foreign election interference more brazen than anything Vladimir Putin has attempted.
John Adams would have had J.D. Vance arrested.
Vance’s argument about Europe betraying democratic values is particularly rich, of course, coming from the administration of Donald Trump. But set that aside. Even by more prosaic measures, and ignoring the trajectory Trump has put America on, a comparison of democracy and freedom in the United States and Germany most certainly does not favour the former. Freedom House is a venerable American NGO headquartered in Washington DC that has tracked the state of democracy and civil liberties in the world since the early 1970s and its latest scoring gives the United States 84 out of a possible 100 points. Germany scores 95. No Western European country scores as low as the United States.
I think any American on the international stage could be subjected to some tu quoque, given recent events. But as often is the case, 2 things can be true at once.
As acknowledged in the OP, Vance did make some reasonable points on the state of European speech, examples of hypocrisy notwithstanding. That hypocrisy shouldn’t totally detract from the legitimacy of some of those points.
So, anti holocaust denial laws in Germany or France? Totally makes sense. But some of the internet speech policing around “woke” issues? (In the UK, especially). That does seem excessive.
I think a reasonable person could parse what does and doesn’t make sense, and come to a conclusion that Europe is not heading in the right direction on speech.
When Vance chided the Europeans for censorship, he neglected to highlight the US’s own culpability on this with the book bannings, and complicitness to control the media in the US through threats etc. Hypocrisy indeed!