So to Speak Podcast Transcript: Is free speech declining worldwide?

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Jacob Mchangama: Around the world, we see relatively strong support for free speech in the abstract, but collapsing support when it becomes specific about should you have a right to offend minorities, say something controversial about religion, insult the national flag, and perhaps most worryingly, extremely low support for free speech when it comes to generative AI.

Male Speaker: Somewhere I read of the freedom of speech.

Male Speaker 2: You’re listening to “So to Speak: The Free Speech Podcast. Brought to you by FIRE, the Foundation for Individual Rights and Expression.

Nico Perrino: Welcome back to “So to Speak: The Free Speech Podcast,” where every other week, we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am your host Nico Perrino. Free speech has long been a cornerstone of a democratic society. It’s built on the simple premise that the government doesn’t get to decide which ideas are too dangerous to hear. But in today’s world, that principle is under growing strain. Governments are increasingly justifying speech restrictions in the name of combatting misinformation, hate speech, and extremism.

At the same time, new technologies are making it easier than ever to monitor, shape, and control what people say and hear. Many free-speech advocates warn that these efforts may be eroding democracy rather than protecting it. Today, I am joined by two of these advocates to discuss what they fear is a global free speech recession. Jacob Mchangama is a Senior Fellow at FIRE and the founder and Executive Director of The Future of Free Speech at Vanderbilt University.

And joining him is Jeff Kosseff who is a Senior Fellow at The Future of Free Speech. And the two of them are out with a new book that came out today titled The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom. Gentlemen, welcome back onto the show, both of you. Jeff, you were just here.

Jeff Kosseff: Yes.

Nico Perrino: Not in studio with me – remotely.

Jeff Kosseff: I can’t stay away.

Nico Perrino: Yeah, you can’t stay away from this podcast. You also can’t stop writing books. How many books have you written?

Jeff Kosseff: If you count a textbook, it’s five, but I wouldn’t count the textbook.

Nico Perrino: Good for you. How do you guys coauthor a book? As our listeners know, I just wrote a book. What was your process like? Would someone write the first draft of one chapter, then you would share it, and someone else wrote the first draft of another chapter? How do we make this work?

Jacob Mchangama: We had a pretty straightforward division of labor. I think we agreed on an outline, and Jeff did the heavy lifting on the US-specific parts, and I took the lead on more international stuff. And Jeff was also the lead on platform regulation, generally. So, it felt quite natural, and then we shared drafts, and worked on each other’s drafts in Google Docs, and there was no drama.

Jeff Kosseff: Yeah, no, it went very smoothly. It really was great for me to get more of an appreciation of international speech regulations because I really focus my work on the US and I didn’t quite realize how much I took that for granted until we learned more about what other countries are doing.

Nico Perrino: Well, Jacob, most of your career was spent abroad. You’re Danish, right?

Jacob Mchangama: Yeah.

Nico Perrino: And now you’re at Vanderbilt University running The Future of Free Speech project. So, what led you to come to the United States to start up this project and, ultimately, to write this book.

Jacob Mchangama: Well, I’ve sort of been a heretic for a while in Europe in that I favor a more First Amendment-style approach to my free speech, and for me, I focused on global free speech for a while. I set up a think tank more than 10 years ago that focused on rule of law and human rights more generally, but in the past five years or so, free speech has been – maybe even longer – has really been what I’ve focused more and more on. I wrote a book on the history of free speech, and it was always the idea that I wanted to set up – set up a branch or whatever – of the think tank focusing on free speech in the US, and I had this opportunity to set up a think tank at Vanderbilt.

Vanderbilt reached out to me, and we’re an independent 501(c)(3) at Vanderbilt, but have a great collaboration with them. So, and I thought that would be – and it has turned out to be – a really good set up. We could maybe talk more about how free speech is doing in this country.

Nico Perrino: Well, I was gonna turn to Jeff. I was like, “Interesting time for Jacob to come over to America and set up a project focused on the future of free speech.” I mean, what’s your assessment of the current moment for free speech in America?

Jeff Kosseff: So, I think it depends on how you look at it. So, there are many great challenges in America right now for free speech, but we also can get some appreciation for how courts are treating free speech challenges where they’re largely, I think, standing firm, and enforcing the same principles that have guided them for decades.

Nico Perrino: So, the courts are good?

Jeff Kosseff: The courts are good, yeah. In terms of other branches of government, there are more challenges. Even for writing a book, we wrote most of the book in 2024, and we edited it in early 2025 –

Nico Perrino: I was gonna ask you about that, yeah.

Jeff Kosseff: So, that, even – a book is perhaps a more challenging format for the current times because, I mean, even in the past week or so, there’s things that I’d like to get in the book. So, that poses challenges, but what we tried to do is focus on the free speech principles and the need to have them endure. So, I think that really helped capture what the general challenges are.

Nico Perrino: Well, you guys talk about a global free speech recession, which means we’re not just having a free speech recession here in the United States; we’re having one globally in democratic society. So, what do you mean by that?

Jacob Mchangama: I mean, you can look at the data. Just the number of countries that are backsliding democratically, that goes hand in hand with backsliding on free speech indicators. In fact, free speech is probably the most central indicator to determine whether a country is moving towards more democracy or more authoritarianism. And that is why we called the book Democracy’s Most Essential Freedom because that’s essentially the conclusion – that free speech is a meta right.

It’s a meta principle that undergirds free and open democracies – not only individual freedom, but political pluralism – all the classic justifications of why we have free speech. And, I would say, across the board, free speech is in decline. It’s not surprising that free speech is obliterated in China, in Russia – although –

Nico Perrino: North Korea, Iran, you can’t get access to the internet.

Jacob Mchangama: Yeah. I guess the thing to say is that maybe 20, 25 years ago, we thought that new technology would essentially mean that it would become very difficult, if not impossible, for these authoritarian states to use censorship. Of course, they’ve learned to reverse engineer those technologies to supercharge censorship and surveillance and exploit it in ways that pose huge challenges. From Chinese AI to Russia’s – the way that Russia now is cracking down on Telegram, and so on, and so forth.

But in democracies that – sorta the traditional heartland of free speech – you see more and more tendencies towards eroding it. Europe is a good example. Increasing focus on hate-speech laws, increasing focus on platform regulation. Now, laws to save the children focus on misinformation and so on. And so, all of that just paints a picture of free speech being in this global decline, and it’s been in decline for maybe two decades by now.

Nico Perrino: Yeah, you write in the book between 2014 and 2024, freedom of expression substantially deteriorated in 44 countries. This means that, in just 10 years, about 5.8 billion people worldwide have faced increasing restriction in voicing their opinions, criticizing their governments or religious authorities, and accessing free and independent media. And in 2024, Freedom House concluded that global internet freedom receded for the 14th consecutive year with declines in 27 out of the 72 surveyed countries. Now, is it the hate speech policing, Jacob, that you mentioned that’s really driving this fear over the open internet and protecting children? Or are there other factors at play?

Jacob Mchangama: Unfortunately, I think it’s a perfect storm. So, it’s new, disruptive technology. Think about, you know, we’ve had huge panics about social media. Now it’s AI.

Nico Perrino: Internet, social media, AI – there’s been a lot of technological revolutions the past three decades.

Jacob Mchangama: And all of that tends to disrupt institutional authority, and there tends to be a backlash and attempt to reimpose some form of top-down control. Then, you have a sense of – open democracies are no longer in the ascendancy geopolitically, so there’s a fear that free speech online reinforces those who want to do away with democracy and democratic values, so there’s a need to crack down on that. Then, you have big tech, these platforms who serve as perfect villains for crackdowns on free speech because you’re not going after the users. Oh, no, no, no, we’re going after Mark Zuckerberg and so on.

When in reality, I think, very often, it is about controlling access to share and access information of users. But it makes it very difficult when you’re on the free speech side of things because you immediately are accused of running interference for big tech when I don’t think any of us really care whether Meta platforms are around tomorrow if a new competitor comes along with a better, more speech-protective product.

Nico Perrino: Unless we lose all of our photos, of course, right? But we’re talking here about democratic societies. Presumably, the population has a voice in these policies, and so they’re calling for these greater free speech restrictions? It’s not just the governments that, those in power, the elites that are demanding them?

Jacob Mchangama: Yeah, so, at The Future of Free Speech, we did this survey of attitudes towards free speech in 33 countries around the world, and there was a huge decline. Frighteningly, the third-largest drop was in the US, and especially among younger Americans, you saw a drop. I think that chimes with some of your own research at FIRE. So, around the world, we see relatively strong support for free speech in the abstract, but collapsing support when it becomes specific about should you have a right to offend minorities, say something controversial about religion, insult the national flag, and perhaps most worryingly, extremely low support for free speech when it comes to generative AI.

Nico Perrino: All of this presumes that there was some sort of high point for free speech that we could decline from. Did we have one of those periods, Jeff? What are we declining from here? What are we receding from?

Jeff Kosseff: I think, in the United States, we’re receding from real protections that the Supreme Court has created over the past century, and fortunately, the Supreme Court is not receding. I think the public sentiment is, and we’re starting to see the legislatures, both at the state level and congress, really try to test the limits of the very high bar that the Supreme Court has set for speech regulations. And, I think, particularly the children aspect – you know, saving the children – this is something that’s really been, since the beginning of the internet, has been an argument, but I fear that it’s becoming far more persuasive both in the United States and outside of the United States.

Nico Perrino: Well, you mentioned the Supreme Court, and it seems like its recent decision in Free Speech Coalition v Paxton – which relates to a Texas law that limits internet access, or gates internet access for websites that feature adult content – was a backtrack or a recession from its decision in the Reno v ACLU case in the late 1990s.

Jeff Kosseff: It was, and they tried to distinguish it. I don’t think they did a particularly good job. There are some who would say that Reno is effectively null at this point. I wouldn’t go that far, but –

Nico Perrino: Well, let’s hope not.

Jeff Kosseff: Yeah. Not yet, but we still have some time. I would say even the TikTok opinion was a recession. But I worry that that force of the Supreme Court saying, “Maybe the internet is a little different in terms of needing more regulation,” I think there’s a very real danger in that. And the Supreme Court is not static; there can be new members, and they might have different views on it. I think there also are some really positive developments. I think the NetChoice v Moody case was overall a pretty good – even though they sorta punted the big issue – there was some good –

Nico Perrino: This is the case dealing with Florida and Texas which wanted to impose some restrictions on how social media companies could moderate content, for example. ‘Cause the Supreme Court said, “No, this is an editorial choice, these are private companies. The states can’t manipulate these moderation decisions to reach some sort of speech nirvana,” I think is what they said in the decision.

Jeff Kosseff: Yeah, absolutely. And I think also, even though the Murthy v Missouri case, which was the jawboning case that ended up being decided on standing grounds, I would say even though it wasn’t an internet case, the NRA v Vullo case was even more important for jawboning because that was basically setting a very high bar for when the government can try to exert pressure on a third party.

Nico Perrino: And that was the case out in New York where the insurance regulator effectively told a bunch of companies that were working with the National Rifle Association to stop doing business with them, or else.

Jeff Kosseff: Yeah, and I think that’s gonna be very useful against government jawboning in the future. So –

Nico Perrino: It’s been useful in the law firm cases, right? Where President Trump has signed executive orders restricting the ability of law firms to enter courthouses, or do business with the federal government, things like that.

Jeff Kosseff: So, I think the real challenge is that when you hear legislators talk about children’s issues, or, not as much now as a few years ago, but misinformation, I think they really are untethered from free speech principles, and they don’t – not all of them, but many of them – don’t really care about sticking to strong free speech principles. And they try to distinguish why this isn’t about free speech. They’ll say it’s about conduct and not speech, or it’s about the algorithm and not speech, but overall, I think they’re pretty weak excuses, and I’m just worried that, in the US, that’s really eroding what has been very strong protections for online speech.

Nico Perrino: Did you see that line from Gorsuch’s opinion in the Colorado conversion therapy case where he more or less said, “Just because you call speech conduct doesn’t make it so”? I love that line. But the courts are one thing, right? The courts, in enforcing constitutional principles, are enforcing, in many ways, nondemocratic principles, right? No matter what the democracy or the population wants to do, you can’t infringe these rights. But legal principles can change. Precedent can change. In the first 140 years in this country, the Supreme Court did very little to protect First Amendment rights. Where is the culture at in America?

Jeff Kosseff: It’s not great.

Nico Perrino: Because these people are gonna be the judges, the Supreme Court justices one day, and they might have a very different conception of what the First Amendment means.

Jeff Kosseff: Yeah, I think that’s a very real risk that there’s a lot more thinking about short-term goals and not as much thought about what it means to erode those principles. So, Jacob will get tired by the end of this book publicity of hearing me talk about this, but one thing that really sticks with me is in 2021, there was legislation introduced in Congress called the Health Misinformation Act, and it would’ve taken Section 230, which protects online platforms from claims about user content, and it would’ve said, “Online platforms don’t get Section 230 protection for amplifying health misinformation.” And you look in the bill, you say, “How do you define ‘health misinformation’? What is this?”

And it says, “This will be defined by the Secretary of Health and Human Services.” And I spoke out pretty frequently about this legislation at the time, and I said, “This is crazy. This is giving one unelected bureaucrat the authority to define what is permissible speech. Don’t you see a problem with this?” And the supporters of the bill said, “You’re being crazy. We trust the HHS secretary.” And I said, “Well, but don’t you think there might be an HHS secretary who you disagree with who might eventually be in office?”

And they said, “No, you’re being dramatic. What are you talking about?” And I think, even within a few years, you look at how crazy that position is, and they were thinking about the very short-term, “We’re concerned about vaccine misinformation.” And they were willing to throw away these great safeguards that we have because they didn’t like certain content that was posted, and I think that’s really dangerous.

Nico Perrino: You talk about some various turning points for free speech in the past couple of years. The internet and social media obviously generated a conversation. The 2016 Russian disinformation campaigns, as well, and this broader concern over misinformation which speaks to another one of your turning points – the COVID infodemic. And then there’s the rise of artificial intelligence. Can you, Jacob, unpack the 2016 Russian disinformation campaigns? What conversations and backsliding did that spark for free speech?

Jacob Mchangama: Yeah, it was a perfect storm on both sides of the Atlantic because you had Brexit and the 2016 election close together, and so the narrative that started was that it was essentially disinformation in the US, Russian disinformation in Brexit – it was Cambridge Analytica. And these claims – that is, in the United States, Russian disinformation essentially had a significant, sometimes decisive, influence on the election. In other words, when people logged onto their social media feeds and they encountered Russian disinformation, they magically changed their mind from being Hillary supporters to voting for Donald Trump. That was the main issue.

A lot of subsequent research has debunked that. A lot of studies have said that Russian – which was real. I mean, the Russians did try to influence the election in many ways, and also in ways – like hacking DNC emails is not protected speech. I think everyone agrees about that. But relatively few people were confronted with it, and it had a negligible outcome based on the best available research. But that narrative really drove a lot of what I would call elite panic about democracy is under attack.

If you go back five years, you had the Arab revolt. At that time, the internet, social media was still seen as this democratizing force that empowered dissidents in authoritarian states to circumvent censorship and propaganda. If you go back to 2012, there’s a resolution adopted in the Human Rights Council, led by Sweden and the US, which talks about the importance of internet freedom. Everything that is allowed offline should also be allowed online. Now, if –

Nico Perrino: You wouldn’t see one of those resolutions today, no.

Jacob Mchangama: And so, you had this narrative that, essentially, social media is destroying democracy by spreading disinformation. Then you have COVID, and these are called infodemic. And you have an explosion of laws around the world that, in various ways, some of them criminally try to prohibit disinformation. In many countries, these laws are nakedly used to crack down on dissent. In other countries, it’s more indirect pressure on platforms by governments.

The Murthy case sprung out of the fact that, under the Biden administration, there were sometimes not so subtle attempts to influence platform content moderation, even if it was never explicitly said, “You have to remove this type of content.” But it was quite clear that the rhetoric coming out of the White House was, “We don’t think the First Amendment and Section 230 are our friends right now at this time.”

Nico Perrino: Didn’t Joe Biden say that the social media companies were killing people?

Jacob Mchangama: I think Facebook.

Jeff Kosseff: Yeah, Facebook.

Nico Perrino: Yeah. So, what evidence, if any, is there that misinformation, or disinformation campaigns, or even artificial intelligence, if we’re talking about deepfakes, is manipulating elections? I mean, we’ve had a couple of elections since – what, ChatGPT came online was that late 2022?

Jacob Mchangama: Yeah. This is a great example that we use in the book. So, in 2024 was a super election year. I think there were around 2 billion people around the world who were eligible to vote. And when you saw the headlines in newspapers and media, they were very alarmist. Like, “This could be the year democracy drowns in disinformation.” The World Economic Forum said that disinformation, AI generated disinformation is the biggest threat against humanity in the short term.

The evaluation is that – I don’t think, from the reports that we found, at least, the consensus is that there were lots of deepfakes, lots of people using AI in the elections, but no real evidence that it had a significant impact on elections. But still, the narrative – it’s not like policymakers and politicians then say, “Okay. Well, it turned out that the narrative around 2016 was wrong, it turned out that AI did not drown democracy. So, maybe we should move in a more speech-protective direction.” That’s certainly not the trajectory of regulation around the world.

Nico Perrino: But what if AI was having a tangible, measurable effect on elections? Would that justify regulating it?

Jeff Kosseff: I think that would be more dangerous.

Nico Perrino: You think?

Jeff Kosseff: Yeah, absolutely. Because then you have government putting its thumb on the scale of what the outcome would be, and I think that getting the government involved in saying, “This is the proper way for AI to respond to queries,” for example. That will inevitably be used by those in power to stay in power. I mean, that’s just the nature of government.

Nico Perrino: Yeah, the question is who do you trust, right?

Jeff Kosseff: Yeah.

Nico Perrino: You were using the HHS secretary as an example before. All of these laws that restrict your access to information or restrict what you can or can’t say, they need to be enforced by someone.

Jacob Mchangama: We’re already seeing it. I mean, China is the most egregious example, obviously, but even – there’s a Dutch government agency that, the head of the Dutch elections, they ran some prompts through some various LLMs, and they found that these LLMs favored parties on the extreme left and the extreme right at the expense of others. And so, they reported their findings to the European Commission, which has authority under the AI Act, and suggested that this might be a democratic problem that you need to do something about.

The counter-question is then, okay, let’s just – assuming that you did your prompts in a way that is scientifically rigorous, what about the wider ecosystem of media? Is it a problem if mainstream newspapers endorse specific political parties and not others? Is that a democratic problem that you need government oversight over? So…

Nico Perrino: I’ve just found people are reluctant to extend First Amendment protections to artificial intelligence or anything that’s produced by them.

Jacob Mchangama: We don’t make the argument that the companies or the LLM has human rights, but that, first and foremost, we as users have a right to access information. This is actually a point where international human rights law has explicit guarantees that, on paper, sound stronger than the First Amendment because human rights law says that free speech includes the right to share and access information across borders, regardless of media. So, that essentially says, “Okay, whether it’s social media, whether it’s AI, you have a right to access information. The government shouldn’t interfere with that.”

Nico Perrino: Is that one place where international law might be a little bit stronger than law in the United States? Because, Jeff, we have a lot of really good law in the United States – First Amendment law – that addresses a speaker’s right to speak. We have some case law addressing people’s right to access information. The first time a speech restriction – a federal speech restriction – was struck down by the Supreme Court on First Amendment grounds was 1965 in Lamont v Postmaster General, and that was a case involving restrictions that the Post Office placed on accessing Communist literature.

I think it was the Peking Review was at issue in that case. So, the first time that we struck down a federal speech restriction involved the access of readers to information, but since then, it seems like it’s somewhat of an undeveloped area of law.

Jeff Kosseff: Yeah, I find myself citing Lamont quite a bit. And I wish we had more cases like that, at least at the Supreme Court level.

Nico Perrino: Especially in the AI age if you want to extend First Amendment free speech protections. Obviously, what gets produced by artificial intelligence is somewhat created by the people who developed these LLMs and trained them, but any time you put a query into artificial intelligence and you’re hoping to access information, that is a First Amendment interest, as well, but it represents an interest that is underdeveloped in the law.

Jeff Kosseff: Yeah, absolutely, and I think it’s gonna be inevitable that we’re gonna have more case law on the right to receive. With all these regulations on AI, the states are all going in their own direction, and –

Nico Perrino: Let’s just hope it’s not around a suicide case ‘cause that’s what it seems like a lot of these cases are right now.

Jacob Mchangama: Also, the stakes are really high, right? Because search is no longer search the way that it was three years ago. Search is now – generative AI is embedded in it, right?

Nico Perrino: Yeah.

Jacob Mchangama: And that has, in many ways, made – revolutionized search, made it much more useful than just having a list of blue highlights –

Nico Perrino: Then hoping that what you click on gives you the answer that you need.

Jacob Mchangama: And that, to me, is like, wow, this is extremely useful. This is what you want freedom of expression to do – to empower individuals to have access to information that would have taken an army of PhDs with access to libraries around the world in the age of analog. Suddenly, you can do that now. Of course, you still have to be critical. There’ll be hallucinations, some information will not be as rigorous, but if you do a good job with your prompts and use the best available models, you can get incredible research at the fingertips. I think that’s a huge net benefit to society.

Nico Perrino: Well, we used to have the saying – I think we still do – “Do you believe everything that you read on the internet?” And the last podcast that we just published was on misinformation in early America, the colonial period, and one of the things that you find is that a lot of what’s published in colonial-era newspapers is international news. Most of local news was shared by word of mouth, and because it took so long to print a newspaper, by the time you printed it, the local news would become stale, everyone had heard the news. So, a lot of it is international news, and that news is really hard to verify. Often, it’s letters sent by merchants and whatnot.

So, you have a lot of misrepresentation, misinformation happening there, and it just goes to show that these concerns over what is true and what is false are as old as time. And over time, you develop systems by which you can check, or media literacy is developed. No longer am I really believing the Nigerian prince who says he has $1 million for me, for example. But it seems like, right now, we’re so fearful of artificial intelligence that we don’t wanna wait for media literacy. The risks are too high, so to speak.

And, Jeff, if we don’t extend First Amendment protections to the outputs of this artificial intelligence, what are the risks? Presumably, then, if they don’t receive First Amendment protections, the government can order AI companies – what they can or cannot produce in the outputs?

Jeff Kosseff: Yeah, I think it’s the concerns that we’ve seen in other countries where the government does have the power to affect the outputs.

Nico Perrino: No discussion of Tiananmen Square out of an LLM from China.

Jeff Kosseff: Yeah, and I think, regardless of your partisan affiliation, that should terrify people to think about the role that AI is playing now, and what it will play. And letting the government effectively be the programmer to determine what people see, what people hear, that’s contrary to all First Amendment principles. And I think that it would just be a very dangerous place if we got there, and it’s scary to see states trying to – on the margins, at least – try to do that already.

Nico Perrino: Well, what does it say about human nature that we can be so trusting of those in power that, when we see a problem, our first instinct to find a government solution?

Jacob Mchangama: I mean, free speech is – robust, principled free speech has been around for a very short time, right? In many ways, it’s a counterintuitive principle.

Nico Perrino: You know the history better than anyone. You wrote a book about it – the authoritative book on it.

Jacob Mchangama: Sometimes, obviously, those of us in the free speech space also have to take a reality check and just recognize that free speech might be celebrated in the abstract, but for most people, it just becomes counterintuitive when the abstract seems like a very concrete threat.

Nico Perrino: And so it’s always been, though. How do you get the golden era? How do you get this peak that we can then recede from?

Jacob Mchangama: Well, I mean, okay, so this is my most pessimistic take, right?

Nico Perrino: And then I wanna hear Jeff’s optimistic take.

Jacob Mchangama: I mean, this country hasn’t lived under authoritarianism for a very long time. So, maybe there needs to be a complete breakdown, a couple of years living under authoritarianism where free speech is stripped away, and then, magically, it’ll be reversed by citizens restoring democracy, and everyone will say, “Okay, yeah, actually, censorship was pretty bad for all of us, and we need to safeguard our freedoms.” But in seriousness, that’s why we try to address, in the last part of the book, concrete, tangible solutions. But it’s actually interesting what you just said about how news in the colonial era would travel far and it was impossible to verify.

That also just says to me, even with all the information you can get from countless sources, our ability today to verify information is infinitely better than if you were living in the 18th century America, and you would receive, with three months’ time lag, news from the old world that you had no chance whatsoever to verify. Today, you have all kinds of – if someone writes something crazy on X, there are Community Notes, there are other news sources that you can check, you can use LLMs, and so on.

Nico Perrino: Yeah, when I see something crazy on X, one of the first things I do is go to see if the Associated Press, or Reuters, or The New York Times, or The Wall Street Journal reported on it. But I think a lot of people just kinda accept what they see on the internet – as they always have – uncritically. And I think that’s what people fear the most. That’s why you get things –

Jacob Mchangama: But this points to something. Most people say, “I’m not gullible. I can see through –“

Nico Perrino: Yeah. It’s always the other guy that is.

Jacob Mchangama: But the others, the unwashed mob, they are too stupid, and that’s why we need someone with my ideas to be the guardian of truth and veracity.

Nico Perrino: Is that what Europe’s trying to do? So, you talk about the EU Digital Services Act and UK’s Online Safety Act. Do they deal with mis- and disinformation, or is it mainly just protecting people from – mainly kids – from harmful content online?

Jacob Mchangama: They do a lot of things. So, mis- and disinformation is not specifically prohibited, but there’s an obligation to mitigate so-called “systemic risk.” And systemic risk can also be disinformation that relates to democracy, health, and so on. And so, that means that –

Nico Perrino: How do you know what you need to mitigate?

Jacob Mchangama: The platforms don’t have a legal obligation, per se, to remove disinformation, but they have to show that they’re doing something about it if it constitute a systemic risk. And when it comes to the biggest online platforms, the regulators, the commission – the commission is the executive arm of the European Union, which is essentially a political body. And so, you can see it has certain incentives to not necessarily act as an independent regulator, and I think that’s a huge concern, at least for me.

Jeff Kosseff: And, just for the DSA as an example, I’m amazed at the Europeans’ ability to use all this bureaucratic language, and talk about systemic risks, and so forth because we saw in the lead-up to the 2024 election, we saw Elon Musk planned to do an audio interview on X with Donald Trump, a candidate.

Nico Perrino: Yes!

Jeff Kosseff: And he got a very sternly worded letter from the EU commissioner who oversees the DSA reminding him about the obligations under the DSA, and noting that there’s this plan to talk to Trump, and it was a very scary thing because, even though it wasn’t saying, “This is illegal,” it was, “Remember your obligations under this law that can cost you quite a bit of money.”

Nico Perrino: I was gonna ask what are the costs associated with a violation of one of these acts?

Jacob Mchangama: Up to 6% of global turnover, which is –

Nico Perrino: Is that so high that no country or regulatory body like the EU is actually gonna levy it? Is it per violation? Because that would be crazy.

Jacob Mchangama: I’m actually not sure, but some of the proposed fines are pretty high. And we’re still in the beginning of the DSA, so we don’t know what it will look like going forward. And there’s a lot of Europeans, even some American scholars who I respect a lot, who sort of downplay this. They will say, “Well Thierry Breton, the commissioner who wrote that letter, was essentially criticized by his colleagues, he’s no longer in office,” and so on. But when you look at the rhetoric surrounding the DSA and disinformation from the Commission, it is very speech restrictive.

For instance, there’s an obligation, known as an action system under the DSA, meaning that if platforms are notified of content that is illegal, they should evaluate it and remove it as soon as possible if it’s illegal. But what is illegal is defined under national and European Union law, which means that every time a country expands its criminal law, for instance, it will automatically be covered by the DSA. And right now, the European Union is proposing to harmonize and expand the definition of hate speech across all 27 member states. And the European Parliament is saying, “That’s a great idea, but we should have – there should be no exhaustive list of protected categories.

It should be open-ended, open to social dynamics,” which means that any group, based on identity, I guess, could perceivably say, “Well, this is hate speech against us. It’s hate speech against the Marxist Leninists,” or, “Hate speech against the Libertarians,” or –

Nico Perrino: Well, that’s really interesting ‘cause one of the things that we do in the United States that the Europeans do differently is we have categorical exceptions to free speech. We don’t have categorical protections for free speech, but the categorical exceptions are obscenity, defamation, speech integral to criminal conduct, incitement to imminent lawless action, whereas the Europeans, it’s more, historically, has been somewhat more of a balancing test of harms. I mean, we have a little bit of that in American law, right, Jeff? But it is a somewhat different approach that makes the First Amendment unique.

Jeff Kosseff: Absolutely, and I think that having exceptions to the rule rather than have the rule being this vague balancing test is one of the real strengths of the American system, and it’s something that I really appreciated much more after writing this book because I didn’t realize how vague other countries could be in terms of what they protect. I thought, “Oh, well, things are protected by default, and then there are some narrow exceptions.” No, that’s not really the case in most of the world.

Nico Perrino: Well, one of the things you talk about here, you write in the book, “Despite clear differences, unsettling parallels are now emerging between democracies and authoritarian states. The systematic policing of online speech, the growing use of hate speech laws to punish dissent, and the targeting of religious, ethnic, and national minorities. While these tendencies are far more severe in countries like Russia, Venezuela, and Rwanda, democracies are moving closer to this model than the other way around.” How are these authoritarian countries using hate speech laws, in particular, in ways that are now being modeled by democratic societies?

Jacob Mchangama: Yeah, so, a great example is actually the other way around. So, in 2017, Germany pioneered a law that said that if social media companies, I think, with two million daily users did not remove manifest illegal content within 24 hours, they’d risk a fine of up to €50 million. That was, essentially, a response to the refugee crisis in Germany where they had let in a lot of Syrian and Afghan refugees, and that saw a spike in racist, hateful comments online, which Germany is very uneasy with for historical reasons. And within a couple of years, we saw that Russia, Venezuela, Belarus, Honduras, Egypt had adopted similar laws where they specifically referenced the German law as a precedent. Now, obviously, they were already censoring and suppressing speech –

Nico Perrino: Oh!

Jacob Mchangama: – and they would have done so anyways, but suddenly, Germany –

Nico Perrino: These democratic societies that –

Jacob Mchangama: – had given them whataboutery points where you could say, “You can’t criticize us because we’re just doing what you’re doing,” even though they do it in bad faith. And you also see that, in Russia, where they have these so-called “memorial laws” where they say certain parts of Russian history cannot be denied. For instance, there’s a Russian blogger who was convicted for saying that, essentially, the Soviets and the Nazis collaborated, which is true.

Nico Perrino: Yeah.

Jacob Mchangama: In 1939, they signed a –

Nico Perrino: It’s the Molotov-Ribbentrop pact.

Jacob Mchangama: Yeah, exactly. To carve up Poland. But if you do that, you denigrate the achievements of the Red Army, which is something that the Russians don’t like. And so, you’re punished. And then, when Western countries criticize that, the Russians say, “Well, in Austria, Germany, France, you have laws that says you can’t deny or trivialize the Holocaust. Or even war crimes as defined by the Nuremberg Tribunal. So, what’s the real difference?” And so, that’s really what we’re seeing, and I think –

Nico Perrino: Well, that doesn’t bode well given the United States setting these international norms in the way the Executive branch, in particular, but also Congress right now.

Jacob Mchangama: No, that’s, I think, a real concern, that, however imperfect, however inconsistent, America has been the country most loudly proclaiming the importance of free speech in the post-World War II era. There’s no sign that I’ve seen that – there’s been criticism of Europe by the Trump administration –

Nico Perrino: JD Vance giving a big speech at the Munich Security Conference last year.

Jacob Mchangama: But now he’s in Hungary with Orbán, right? If I was a journalist, would you rather be working in Germany with all the censorship that they have, or in Orbán’s Hungary? And I think I would choose Germany over that because Orbán is suddenly not a friend of free speech and open criticism. And all of the things that the administration has done to pursue its enemies, real and perceived, is obviously something that also can inspire others. Like, if America, the world’s preeminent democracy, is doing this, what’s wrong with what we’re doing?

Nico Perrino: Well, where do we go from here? How do we stop the backsliding, the global free speech recession? Do you have any solutions, Jeff?

Jeff Kosseff: In the book, we look at a few paths to go down. One thing that we focus on quite a bit is Taiwan. And so, Taiwan has a faced a lot of these same pressures that we’ve seen in the United States and Europe with concerns about COVID misinformation, and election interference, and so forth.

Nico Perrino: Yeah, and China’s gunning for them.

Jeff Kosseff: Yeah, absolutely. And they took a very different path. They could’ve gone down the route of misinformation laws and really cracking down on the platforms, but they went, as one government official we write about in the book, they went down a path of radical transparency where they said, “Rather than tell people what to think, we’re going to be transparent, and build trust, and give them as much information as we can about how the government functions, make public meetings available to everyone, have daily press conferences during COVID, and –“

Nico Perrino: Discuss what they’re doing that’s working and not working, presumably?

Jeff Kosseff: Exactly. And be candid because misinformation might work if people don’t have trust in the government. And what Taiwan did, very remarkably, was build that trust with the public. So, rather than regulate, they said, “We’re gonna be transparent and just let people know that this is the government, warts and all. And we’re gonna let them evaluate that themselves.” And I think that could really be a model for the rest of the world when they’re confronting similar concerns about misinformation and other harmful speech.

We also look quite a bit – because we spend a good amount of time talking about pressure on platforms that governments in the United States and outside of the United States have been exerting. And we look at the possibility of decentralized online speech where you don’t have just a few chokepoints where the government can really just be aggressive and say, “You gotta adopt these rules or we’re gonna make life really difficult for you.” And we’ve seen a lot of experiments with –

Nico Perrino: It hasn’t really worked, right? The protocols, not platforms idea – the network effects kinda work against it, right?

Jeff Kosseff: Yeah, and network effects are a big problem, but I think there’s still some hope, and there have been some good experiments, but if you have dozens of different outlets for people to post on, then that’s, perhaps, not as powerful as having a few, but that, at least, reduces the amount of control that the government can have over a few companies.

Jacob Mchangama: And one of the things that Taiwan actually pioneered was the crowdsourced fact-checking model which was ultimately adopted first by Twitter as Birdwatch and then as Community Notes. That has become a defining feature under Elon Musk – whatever else you might think of X currently – which I think shows a lot of promise, both in terms of its accuracy, its potential ability to scale, and to also increase trust. Because if you have third-party fact-checkers as experts, that doesn’t necessarily create a lot of trust.

But when you have Community Notes that are built on a bridging algorithm which says that a critical mass of people with very different political ideas have to agree that a specific Community Note is useful before it becomes operationalized and visible. That makes it more difficult for someone, like a government official, to say, “Well, it’s just the liberals,” or, “It’s just the conservatives who are factchecking me.” No, you’re being fact-checked by the population in your country, which we saw in Minnesota after Alex Pretti was shot by border patrol agents.

The White House came out with all these wild statements, they were all Community Noted on a platform that is certainly leaning MAGA, and they had to change their narratives, and Kristi Noem is no longer head of that office, right? So, I think that is something that holds promise if enough platforms adopt it and if enough users buy into it.

Nico Perrino: So, this is a form of radical transparency that checking of each, by each –

Jacob Mchangama: Yeah, it’s like – it’s Justice Brandeis – you know, fighting bad speech with better speech.

Nico Perrino: Sunlight is the best disinfectant. Electric light the best policeman.

Jacob Mchangama: That can sound like such an empty cliché, but we actually point to some concrete tools that operationalize it and even scale it.

Nico Perrino: Any other silver bullet to end this free speech recession?

Jeff Kosseff: Well, I’ll put a plug in for anti-SLAPP laws.

Nico Perrino: Strategic Lawsuits Against Public Participation. These are when, often, rich and powerful people file a lawsuit knowing they’re gonna lose that lawsuit in the end in order to chill or prevent someone from speaking again in the future. And it costs a lot of money to defend against these sorts of lawsuits.

Jeff Kosseff: It does, and we’ve had some countries and in the US, we’ve had states, to varying degrees of strength, pass laws that make it easier to get the cases dismissed, to get attorney’s fees, to freeze discovery, and I think that those sorts of laws really can help, at least in some cases, allow people to speak without fearing this ruinous liability.

Jacob Mchangama: And then something that FIRE does really well, which I think is crucial on the part of us who see ourselves as free speech advocate and defenders, that we have to be consistent and principled when the political winds change because otherwise, the general public will be cynical about it. “Oh, you’re stooges for one side or the other.” And, as you know better than anyone, it’s often a thankless job.

Nico Perrino: It’s very thankless, yeah.

Jacob Mchangama: But I think that’s – when you create a record over a long time where you actually show that you’re principled and consistent, that actually does – has a better ability to change hearts and minds, and I think that is absolutely necessary. Unfortunately, I think there was a whole cottage industry of free-speech tourists, if you like, whose principles have completely imploded, and I think that does not help the cause.

Nico Perrino: Yeah. Over the past 10 years, there was that cottage industry that, at the time, wasn’t a cottage industry. You try to assume the best intentions, but we were locking arms with a lot of folks on the free speech fight, particularly on college campuses, fighting against the excesses of particularly the progressive left. But now that power has shifted, the vibes have shifted, you have a Republican president, you have two Republican houses of Congress… I wouldn’t say necessarily a lot of these folks that we’ve locked arms with are always defending the censorship – they’re just remaining very quiet about it.

Jacob Mchangama: And some are defending it.

Nico Perrino: Yeah. I was careful with my language there, yeah.

Jacob Mchangama: Well, the other side started it, which is the sandbox argument.

Nico Perrino: Yeah. So, it wasn’t a principle, it’s okay to do it. If the other side did it first, it just doesn’t –

Jacob Mchangama: And where do you start? Where do you start the tallying up of which side started it?

Nico Perrino: Yeah, do we go back to the Federalists in 1798 and say, “Well, they started the censorship first!” And then everything from there on forward is a tit-for-tat. I don’t know, but yeah, that has been one of the great disappointments of the last couple of years are all these so-called free speech warriors are not. And I think that gives free speech a bad rap.

Jacob Mchangama: Yeah.

Nico Perrino: People see it as just a political tool to win victories in the short term rather than this principle that needs to be vindicated because it’s what differentiates America or any other country from those who would prevent you from being who you are and speaking your mind. So, again, yeah, very disappointing. Are you guys taking this book on the road or just to this podcast here?

Jacob Mchangama: Yeah, we’re going to – we did a podcast – this is our second podcast today. We did “Politics and Prose” prelaunch yesterday, we’re doing a Cato live event –

Nico Perrino: Book forum?

Jacob Mchangama: – on Thursday. We have, like, seven podcasts lined up this week.

Jeff Kosseff: Yes, lots of podcasts.

Jacob Mchangama: And then we go to New York next week to record something with the good Nick Gillespie.

Nico Perrino: I heard, yeah. At Mr. Farmer’s loft, I heard. Cool. Well, thank you guys for coming into the studio here. Again, the book is The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom. I have the galley copy here, uncorrected proofs. But it is available today. The authors, of course, are in-studio with me, Jacob Mchangama and Jeff Kosseff. Gentlemen, thanks, again, for coming on the show.

Jeff Kosseff: Thanks so much.

Jacob Mchangama: Thanks for having us, Nico.

Nico Perrino: I am Nico Perrino, and this podcast was recorded and edited by a rotating roster of my FIRE colleagues, including Bruce Jones, Ronald Baez, Jackson Fleagle, and Scott Rogers. The podcast is produced by Emily Beaman. To learn more about “So to Speak,” you can subscribe to our YouTube channel, our Substack page, all these feature video versions of the conversation. We’re also on X where you can search for the handle FreeSpeechTalk. If you have feedback, you can send that to sotospeak@fire.org.

Again, that is sotospeak@fire.org. And if you enjoyed this episode, please leave us a review on Apple Podcasts or Spotify, wherever else you get your podcasts is fine, as well. Reviews do help us attract new listeners to the show. Speaking of algorithms, it helps juice the algorithm, helps more people find the show. And until next time, thanks again for listening. The Foundation for Individual Rights and Expression, FIRE, and the flame logo are registered trademarks of the Foundation for Individual Rights and Expression.