Is It Possible for Speech to Ever Be Too Free?

To similar effect, Dabhoiwala condemns the Letters as sexist because they emphasize the role of speech in public debate at a time when women were, for the most part, excluded from the public domain—even though nothing in the Letters suggests they should be. And he brands the Letters racist because the authors “were personally connected to slave ownership in the Americas.” (Neither owned slaves, but Dabhoiwala notes that Trenchard invested in a company engaged in the slave trade and that two of Gordon’s children moved to Jamaica, a hub for the slave trade.) But again, those unfortunate if not unusual facts of the time do not diminish, on its merits, the argument that Cato’s Letters makes.

Dabhoiwala is not wrong to observe the limited scope of speech rights at their inception. That women and enslaved people were excluded from the public sphere or otherwise denied the right does not, however, negate the intrinsic value of free speech, any more than the fact that women were not originally protected by the Constitution’s equal-protection clause or that women and African Americans were denied the vote negates the value of equality or the franchise. The answer to illegitimately limited speech rights is not to condemn those rights, but to extend them equally to all. Which is precisely what eventually happened—through the demands, asserted through speech, of those initially excluded.

When Dabhoiwala does turn to the merits of the Letters’ argument, he deems its case for free speech “profoundly flawed” because it downplays the harms that speech can inflict on others. Yet the Letters expressly limit free speech to “the right of every man, as far as by it he does not hurt or control the right of another.”

John Stuart Mill, the author of another foundational document in the free-speech canon, receives similar treatment. As an agent of the East India Trading Company, Dabhoiwala notes, Mill was unwilling to extend free-speech protections to Indians. Dabhoiwala is not wrong that Mill was a hypocrite in his role as an employee of the trading company. But it’s not clear what effect, if any, that should have on the merits of the argument he advanced on behalf of free speech in his book On Liberty.

As we move across the ocean to the United States, Dabhoiwala turns to the First Amendment. Here, his critical account of its history rests largely on the claim that American free-speech protections are “absolutist.” He notes that the First Amendment states that “Congress shall make no law abridging the freedom of speech.” But the Constitution’s speech protections have never barred all regulation of speech. Indeed, for most of its first 100 years of existence, the First Amendment prohibited little more than “prior restraints” of speech, namely requirements that works be approved by the government before being published. And even under its more expansive current interpretations, whole categories of speech are unprotected.

Pursuing this absolutist theme, Dabhoiwala also argues that the American conception of free speech generally ignores the harm that free speech can sometimes inflict. But First Amendment doctrine has taken harm into account. It denies protection to many categories of speech precisely because of the harms they cause: libel, incitement, fighting words, true threats, obscenity, child pornography, and speech integral to criminal conduct. It allows the government to prohibit commercial advertising if it is false, misleading, or proposes an illegal transaction, again because of the harms such speech can cause. Even where speech is otherwise fully protected, the government can regulate it where necessary to avoid harms to compelling public interests, including the right to vote, national security, foreign relations, and equality. So much for absolutism.

Dabhoiwala also criticizes the First Amendment for treating speech as distinct from conduct. In his view, speech is action, and to ignore that fact is to ignore the harms it inflicts. But all concepts of free speech properly rest on the recognition that there are in fact important differences between engaging in conduct and talking about it: Prohibiting murder and prohibiting a novel about murder are two very different things. And there is no logical inconsistency between acknowledging that regulating speech and conduct are different and acknowledging that speech can sometimes cause harm. The First Amendment, for example, allows suits for the injury that defamation inflicts. But because criticizing a government official is different from assaulting him, the First Amendment also limits the tort of libel in ways that it does not limit laws protecting officials from physical attack.

Speech, Dabhoiwala complains, can be “perpetually manipulated by the powerful, the malicious and the self-interested—for personal gain, to silence others, to sow dissension or to subvert the truth.” This is doubtless true. But free speech, he grudgingly acknowledges, has also been used by the well-intentioned, the altruistic, and the vulnerable to advocate for social justice and truth. One can’t protect the latter without the risk of the former—by necessity, free speech belongs to everyone, not just those whose views or motives we like. The right to promote vaccination also protects the right to question its risks. Free speech doesn’t take sides, but that’s a feature, not a bug.

At bottom, Dabhoiwala laments the fact that freedom of speech weighs individual freedom over the collective good. That is indeed true, but again, that is something to praise, not condemn. The point of free speech is to help us determine just what our vision of the common good is. It empowers people to dissent from, challenge, and seek to change prevailing visions and to urge alternatives. For a long time, after all, the “common good” in this country included slavery, denial of the franchise to women, and criminal punishment of sexual relations between people of the same sex. It was largely through activists’ exercise of free-speech rights that those visions were altered.

What Is Free Speech? seeks to tell the story of freedom of speech rather than offer a comprehensive philosophy of the right, and on those terms its revisionist history contributes to a more nuanced understanding of the development of free speech in the modern world, warts and all. But the book’s more polemical ambitions end up getting in the way. Dabhoiwala opens the book by blaming free speech for the 2016 election of Donald Trump, “a man who appeared to have catapulted himself into the most powerful office in the world mainly by broadcasting outrageous and hateful lies to tens of millions of people on social media.” True enough. But free speech also made possible the elections of Joe Biden in 2020, Barack Obama in 2008 and 2012, and indeed every president before that.

Free speech is the lifeblood of democracy; it’s how “we the people” shape our common destiny, hold government accountable, and advocate for change. It does not guarantee good results, but it is an essential attribute of a democratic society—and the single most important tool we have today in fighting back against Trump’s abuses. If the people send him a message with a midterm defeat for Republican candidates, that, too, will be a result of free speech.

More broadly, every expansion of freedom and equality in the United States has been fomented through public advocacy and organized political action—including the abolition of slavery, the provision of suffrage to women, the disestablishment of Jim Crow, the protection of workers, the expansion of civil rights, and the promotion of equal dignity for LGBTQ individuals. If that’s dangerous, then I say let’s be thankful for the danger.