This Week In Free Speech with Jacob Mchangama Jacob Mchangama

In this Special Edition, we will zoom in on current challenges to free speech – specifically in the US. With me to discuss this timely subject, I have  CEO of PEN America, Suzanne Nossel, who has just published her new book Dare to Speak: Defending Free Speech for All.
The conversation evolves the main conclusions of Suzanne's book including matters such as:
How Suzanne´s fight against an international blasphemy law at the UN inspired her to write the book
How Suzanne's 20 principles for free speech aims to provide a toolset needed to speak one's mind in today's diverse, digitized, and highly-divided society without resorting to curbs on free expression
How we deal with hate speech without sacrificing free speech
What we can do to avoid harm when speaking
How so-called cancel culture has migrated from campus to elite media, corporate and cultural institutions
How to balance social media platforms right to control public discourse and the snowballing societal consensus that media platforms need to do more to mitigate the harms of content posted on their services.
Suzanne Nossel is the CEO of PEN America. She has also served as the Chief Operating Officer of Human Rights Watch and as Executive Director of Amnesty International USA; and held senior State Department positions in the Clinton and Obama administrations.
Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.
You can subscribe and listen to Clear and Present Danger on Apple Podcasts, Google Play, YouTube, TuneIn, and Stitcher, or download episodes directly from SoundCloud.
Stay up to date with Clear and Present Danger on the show’s Facebook and Twitter pages, or visit the podcast’s website at freespeechhistory.com. Email us feedback at freespeechhistory@gmail.com.

“Internet Speech Will Never Go Back to Normal,” declared the headline of a recent Atlantic article by law professors Jack Goldsmith and Andrew Keane Woods. The piece argues that the U.S. must learn from China in regulating the internet. “[S]ignificant monitoring and speech control are inevitable components of a mature and flourishing internet,” the authors write, “and governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values.”
But is this conclusion the only one available from the fallout of the coronavirus crisis? Or are there other ways to ensure a mature and flourishing internet in which free speech and public health can coexist? And could Facebook’s new Oversight Board be one of the answers?
Here to discuss the issue are two of the biggest experts on the subject of internet law and platform regulation: Daphne Keller, Platform Regulation Director at the Stanford Cyber Policy Center (formerly an Associate General Counsel at Google); and Kate Klonick, assistant professor at St. John’s University teaching internet law and information privacy, and a fellow at Yale Law School’s Information Society Project.
In this episode we discuss:
Whether social media platforms like Facebook, Twitter, and YouTube have been paragons of responsibility or the lapdogs of censorious governments, when it comes to content moderation?
If the current crisis justifies lowering the threshold for when content is deemed “harmful” or if we should be even more vigilant about what stays online?
Are there specific problems in the policies and guidelines laid out by health authorities like WHO and CDC, which have changed their position on issues like facemasks and included inaccurate information about the nature of COVID-19?
What is the impact and outcome of automated content moderation based on the performance during the pandemic?
Whether democracies — particularly European ones — have weakened online freedom by choosing to respond to legitimate concerns about hate speech, disinformation, and terrorist content with illiberal laws?
Show notes:
Jack Goldsmith and Andrew Keane Woods in The Atlantic: “Internet Speech Will Never Go Back to Normal” 
Samuel Walker: “Hate Speech: The History of an American Controversy” 
Daphne Keller’s Hoover Institution essay: “Who Do You Sue?”
Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.
You can subscribe and listen to Clear and Present Danger on Apple Podcasts, Google Play, YouTube, TuneIn, and Stitcher, or download episodes directly from SoundCloud.
Stay up to date with Clear and Present Danger on the show’s Facebook and Twitter pages, or visit the podcast’s website at freespeechhistory.com. Email us feedback at freespeechhistory@gmail.com. 

Since the coronavirus became a pandemic, governments around the world have adopted a wide range of measures affecting basic human rights. This includes many of the 47 member states of the Council of Europe all of whom are legally bound by the European Convention on Human Rights. Most states have limited the freedoms of assembly and movement, some have also limited privacy and data protection ­and then there are some who have restricted freedom of expression through laws or policies banning false information.
To discuss the implications for freedom of expression is none other than the Council of Europe Commissioner for Human Rights, Dunja Mijatović, who previously served as the OSCE Representative on Freedom of the Media.
In a statement on April 3rd, Dunja Mijatović wrote: “The global health problems caused by COVID-19 require effective measures to protect people’s health and lives. This includes combating disinformation that may cause panic and social unrest. Regrettably some governments are using this imperative as a pretext to introduce disproportionate restrictions to press freedom; this is a counterproductive approach that must stop. Particularly in times of crisis, we need to protect our precious liberties and rights."
In this conversation we discuss:
The measures countries like Hungary, Romania, Russia and Azerbaijan, that typically target false information, have taken during the crisis.
How bad the situation has become for free expression in Europe because of corona-related restrictions.
Which types of restrictions that are particularly worrying and which countries that are of specific concern.
If combating misinformation is vital during this crisis, why is it a problem if states adopt exceptional measures? Article 10 paragraph 2 of the European Convention on Human Rights allows governments to interfere with free expression for the purpose of “public safety” and the “protection of health.”
According to case law of the European Court of Human Rights, the member states have a certain margin of appreciation when it comes to finding the right balance between convention rights (free speech) and competing interests (such as health and public safety). On the one hand the threat from Covid-19 give states a wide margin on appreciation, but on the other hand one could argue that access to information and scrutiny and debate of emergency measures is just as important.
What types of measures that would be consistent with freedom of expression. Would it be legitimate to ban or remove statements that contradicted health advice by WHO or the national health authorities?
Should journalists and media have more freedom than ordinary citizens expressing themselves on social media, blogs and so on.
Full Text of the April 3rd statement
Home page for Dunja Mijatović 
 

The coronavirus has disrupted life as we know it. Billions of people across the world are caught in varying degrees of lockdowns with severe restrictions on their freedom of movement. But while our physical world has shrunk, cyberspace remains wide open. And there is no shortage of information as the internet overflows with torrents of data, news, and updates about the ongoing crisis. But in parallel with the COVID-19 pandemic, the World Health Organization has warned of an “infodemic” of mis- and disinformation spreading through social media and messaging apps. 
Policymakers at social media platforms are acting like gatekeepers, deciding what content is sufficiently healthy for their users around the world to consume. These decisions have real consequences for the practical exercise of freedom of speech and access to information for billions of people. With me to discuss how Facebook is navigating this unprecedented situation is Monika Bickert, who is the Head of Global Policy Management at Facebook with responsibility for content moderation. 
In this conversation we discuss:
What policies Facebook has put in place to counter disinformation on its platforms;
How much content has been downgraded and removed due to disinformation; compared to the period before COVID-19;
How Facebook interprets the risk of “imminent physical harm” amidst a pandemic;
How the shutdown has led to a sharp decrease of available content moderators and a reliance on automated content moderation to flag misinformation; 
Why Facebook has removed Brazilian President Jair Bolsonaro’s comments about the supposed effects of the drug hydroxychloroquine, but not President Trump’s comments about the same drug;
The pros and cons of relying on the guidelines of health authorities like the Centers for Disease Control and Prevention and WHO to determine what constitutes misinformation even though these authorities have revised statements on issues such as the use of face masks (CDC) and the potential for human-to-human transmission (WHO); 
How Facebook uses a network fact-checkers to rate the truthfulness of stories, but who is fact-checking the fact-checkers? 

In 2014, Saudi Arabian blogger Raif Badawi was sentenced to 10 years in prison and 1,000 lashes for insulting Islam by promoting secular values on his blog Free Saudi Liberals. 
Raif Badawi’s fate would have been familiar to Soviet refusenik and human rights activist Natan Sharansky, and many other dissidents in the Soviet Bloc, who also faced long prison sentences and inhuman treatment during the Cold War. Both theocratic and communist states proclaim to be in possession of the “truth.” Consequently, they punish those who engage in religious or ideological heresy, leaving little room for the idea of human rights. 
So, it is no surprise that in 1948, Saudi Arabia and six European Communist states were among the eight countries that did not vote in favor of the United Nations Universal Declaration of Human Rights.
Both communist and Islamic states developed cautious strategies to engage with the growing human rights system in order to seek legitimacy without undermining their grip on power. One key strategy was to pull the teeth from the protection of free expression by including simultaneous obligations to prohibit the broadly defined concept of “incitement to hatred.” But ultimately the very human rights language which the communist states had sought to contain ended up eroding the communist stranglehold on power. 
But the repressive legacy of Communism had a long half-life, even after the ideology itself was dumped on the ash heap of history at the end of the Cold War. The countries in the Organization of Islamic Cooperation — the OIC — sought to exploit the very loopholes that the communist states had introduced for their own purposes. Instead of protecting an atheistic and materialistic ideology, they advanced an interpretation of human rights where restrictions on free speech protected theistic and metaphysical Islamic doctrines from criticism and satire. And while a concerted global effort by democracies successfully beat back the OIC offensive at the UN, this conflict is still ongoing. In fact, the democracies and human rights system of Western Europe have internalized and expanded limitations on free speech, which they once deemed dangerous. This raises the question of just how robust the future of free speech — and the culture on which it depends — really is.      
In this episode we will explore:
How the Communist East and the Capitalist West clashed over the limits of free speech when drafting the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights at the UN;
How Eleanor Roosevelt became a dogged and eloquent defender of principled free speech protections and warned against Soviet attempts to abuse hate speech restrictions to punish all dissent;
How the American position at the UN clashed with domestic laws targeting communists under the Second Red Scare and McCarthyism;
How the Soviet Bloc used laws against “incitement” to punish hundreds of dissidents and human rights activists behind the Iron Curtain;
How the Helsinki Final Act provided dissidents with a tool to hold their governments morally accountable for human rights violations;
How Western states and human rights NGOs gave dissidents like Vaclav Havel and Andrei Sakharov a voice and increased the pressure on the Soviet Bloc;
How the Helsinki Final Act contributed to the fall of Communism;
How, after the end of the Cold War, the OIC launched a campaign to prohibit “defamation of religions” at the UN;
How the OIC campaign managed to secure majorities at the UN and conflate blasphemy and hate speech;
How the OIC campaign was defeated by the Obama administration and the application of the Supreme Court decision in Brandenburg v. Ohio; and
How case law from the European Court of Human Rights undermines efforts to prevent future abuse of human rights to limit freedom of expression.
Why have kings, emperors, and governments killed and imprisoned people to shut th

In November 2019 German Chancellor Angela Merkel gave a passionate speech to the German Bundestag. Merkel said “We have freedom of expression in this country…. But freedom of expression has its limits. Those limits begin where hatred is spread … where the dignity of other people is violated”.
Merkel grew up under a stifling communist dictatorship and serves as chancellor of a country where vicious propaganda once helped paved the way for genocide. So few have stronger credentials when it comes to balancing the pros and cons of free speech. And Merkel´s words of warning are impossible to separate from Germany´s Nazi past following the democratic collapse of the Weimar republic.  There can be no doubt that Merkel and the German commitment to “militant democracy” is motivated by a sincere belief, to paraphrase the political philosopher Karl Popper´s famous “paradox of tolerance,” that democracies must be intolerant towards the intolerant. . 
But there are also those who argue that criminalizing speech is a cure worse than the disease in democracies. To use a deliberately provocative term, laws against free speech might serve as “enabling acts” for authoritarian regimes to crush dissent once in power. 
George Orwell reached the opposite conclusion of Merkel. In the unpublished foreword to his famous novel Animal Farm, Orwell warned against the “widespread tendency to argue that one can only defend democracy by totalitarian methods”. Orwell cautioned “that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you.” 
In this episode we will explore how Weimar Germany was deeply conflicted about the value of free speech. On the one hand, freedom of expression and the press were constitutionally protected. On the other hand, the constitution allowed censorship of cinema and “trash and filth” in literature. Weimar Germany enjoyed a vibrant public sphere with thousands of newspapers, daring art, great intellectuals and groundbreaking science, and yet, authorities used draconian laws and emergency decrees to curb newspapers and individuals seen as fanning the flames of political violence by anti-democratic groups on the right and left. This included one Adolf Hitler and his National Socialist Party. 
When the Nazis finally assumed power, they not only used terror and violence, but also turned the laws and principles supposed to protect the democratic order in to weapons against democracy, paving the way for totalitarianism, war, and genocide.
In this episode we will explore:
How Weimar Germany abolished censorship and created a vibrant public sphere;
How democracy was challenged by violent extremists on the political right and left;
How Adolf Hitler viewed press freedom and free expression as corrosive principles which allowed “Poison to enter the national bloodstream and infect public life”;
How Hitler used his devastating talent for public speaking to whip the crowds in Bavarian beer halls into a frenzy of hatred and become leader of the NSDAP;
How Weimar authorities failed to enforce bans against violent paramilitary groups on the right; 
How Hitler and anti-Semitic Nazi newspapers like Der Stürmer and Der Angriff used bans against public speaking and punishments for speech crimes to gain propaganda victories and attract attention;
How laws and emergency decrees to defend the republic led to increasingly draconian measures against the press, including 284 temporary bans of newspapers in Prussia alone, in 1932; 
How Hitler used the constitution and existing laws to suspend the freedoms of speech, assembly, and association and terrorize political opponents through violence and mass detentions without trial in concentration camps;  
How Hitler turned Germany into a one-party state in less than six months;
How news laws turned any form of dissent, including jokes and rumours, into serious speech crimes;
How Joseph Goe