Jacob Mchangama and Jeff Kosseff are two of our leading commentators on free expression. I’m a big fan of Mchangama’s first book (though I’ve argued with it here). I’ve learned a lot from Kosseff’s previous books (here and here) as well. The two of them are out with a joint effort that is again well worth the read. Though I again have some bones to pick.
The book’s key argument is that we are living through a global free speech recession, one that is afflicting democracies and autocracies alike. There are obviously lots of contemporary threats to free expression worldwide, but I think this framing obscures more than it illuminates. The phrase I found myself writing most often in the margins is “false equivalence.”
Consider their treatment of J.D. Vance’s widely noted 2025 speech to the Munich Security Conference. Vance famously argued that the greatest threats facing European democracy were not Russian or Chinese aggression, but EU internet regulations and the German firewall against extremist parties. There are two things wrong with this argument, and Mchangama and Kosseff only identify one of them. The easy objection is to point out Vance’s obvious hypocrisy. While he was extolling the First Amendment in Munich, the Trump administration was busy attacking law firms, private universities, and independent media at home. Mchangama and Kosseff’s criticism suggests that Vance’s argument was a good one and only laments that the Trump administration did not heed it.
But Vance’s argument is in fact unpersuasive even on its own terms—indeed, borderline delusional. The reason it’s unpersuasive is because of its resort to false equivalence. EU internet regulations are not in fact a bigger threat to European democracy than is Russian military aggression or election subversion. EU internet regulations pose real threats to free expression, and I share some of Mchangama and Kosseff’s concerns about them. But not all threats to free expression are equally severe, and not all paeans to free expression are sincere.
In a similar vein, consider Mchangama and Kosseff’s treatment of Trump’s executive order on free speech. On their account, Trump 2.0 got off to a great start on the free speech front, with a first-day executive order promising to end federal censorship. “It started promisingly” is an actual sentence Mchangama and Kosseff wrote about Trump 2.0. They quickly acknowledge that things went awry, lamenting that the administration didn’t live up to its promise.
But that promise was fake from the beginning, and transparently so. On the very same day, Trump issued another executive order authorizing immigrant enforcement actions against visa and green card holders who express support for political protests that the administration doesn’t like. When Vance and Trump sing the virtues of free expression, they are not just being hypocritical (though they are that); they are weaponizing the American exceptionalist approach to free speech for partisan and anti-democratic ends.
Consider also Mchangama and Kosseff’s chapter on jawboning. “Jawboning” is the First Amendment term of art for efforts by state actors to nudge or coerce private actors to censor the speech of others. The Warren Court famously recognized this as a First Amendment violation in Bantam Books v. Sullivan (1963), and the Roberts Court recently reaffirmed this holding in NRA v. Vullo (2024). Genevieve Lakier has a great forthcoming paper detailing how this doctrine provides an invaluable guardrail against many of Trump’s efforts to stamp out dissent. Mchangama and Kosseff’s chapter proceeds by surveying state pressure on private speech platforms in China, Russia, Turkey, Brazil, the European Union, Germany, the European Court of Human Rights (ECtHR), India, and the United States. Throughout the book, the key throughline of their argument is that “[d]espite clear differences, unsettling parallels are now emerging between democracies and authoritarian states” (p. 160). In the jawboning chapter, they advance some standard civil libertarian criticisms of Germany’s 2017 internet law (many of which I find persuasive), and they then suggest that the subsequent adoption or consideration of similar laws by “a host of authoritarian states like Russia, Belarus, Turkey, Pakistan, and Venezuela” (p. 206) is attributable to the German precedent. Mchangama and Kosseff frequently advance such claims—blaming autocratic speech restrictions on democracies that previously adopted similar speech restrictions—but they provide no real evidence in support.
It is true that there are frequent free speech controversies in democracies and autocracies alike. It is further true that some of these controversies resemble each other even across regime types. But the practical impact of similar speech restrictions on free expression and democratic health is wildly different in, say, Germany and Turkey.
Mchangama and Kosseff’s chapters on SLAPP suits and criminal defamation laws are filled with anecdotes of egregious speech suppression, again from a wide range democratic and non-democratic countries. In stable democracies, many of these attempts at censorship were ultimately blocked by courts, but Mchangama and Kosseff rightly note that the process is sometimes the punishment—even an unsuccessful defamation prosecution can chill the independent press.
This sort of civil libertarian argument by anecdote has a long tradition, and for good reason. Human history has featured lots of brave souls who speak truth to power despite the risks. When they suffer legal repression or private violence as a result, their stories are worth telling. Mchangama’s previous book was filled with such stories, many of which I have since retold in my teaching and writing.
But no matter how compelling the stories, this form of argument is ill-suited to assessing the relative health of free expression in particular times and places. Mchangama and Kosseff recount many egregious examples of censorship--from speech codes on U.S. campuses to internet regulation in European capitols. But one could have written similar accounts of U.S. campuses when I was an Oberlin undergrad in the 1980s (and indeed, many such accounts were written then). Absent the internet context, one could likewise have written similar accounts of European hate speech regulation in the 1980s, and indeed some of the ECtHR judgments Mchangama and Kosseff highlight have been staples of the comparative free speech literature for decades. (They also highlight some new ones that are equally subject to civil libertarian critique; I’ve criticized some of these same judgments myself.)
Mchangama and Kosseff’s call for democracies to do better at protecting free speech is stirring, but their assessment of the relative quality of free expression law in various places is less compelling. For example, their account of the ECtHR highlights some important cases in which the Court has failed adequately to protect free expression. But they don’t devote much attention to the lines that the Strasbourg judges are actually trying to draw. In my forthcoming book, I will show that while the ECtHR does indeed defer to militant democracy inspired speech restrictions imposed by stable democracies like France or Germany, it extends no such deference to ostensibly similar restrictions from backsliding democracies and autocracies like Turkey or Russia. In other words, at least one actually existing court has proven able to draw lines between two sets of speech restrictions that Mchangama and Kosseff treat as identical.
Mchangama and Kosseff’s treatment of Brazil’s Supreme Federal Court is likewise one-sided, due at least in part to their reliance mostly on skeptical western news sources. In my book, I will show that the STF has indeed undertaken aggressive prosecution of extremist speech (and in some cases, probably gone too far), but that it has simultaneously maintained robust protections for non-extremist political speech and independent media. The latter story is not visible in Mchangama and Kosseff’s account at all.
Regarding the Trump-era United States, Mchangama and Kosseff document a great many threats to civil liberties—one of my favorite chapters is the one that examines book bans and social media regulations targeting gender nonconformity—but on my reading, they never offer a compelling account of why the American exceptionalist approach to free expression—”the world’s most speech-protective jurisprudence” (27)—has failed to prevent this new wave of censorship. When discussing European or Brazilian speech restrictions, they regularly offer snarky asides—”The traumatic events of January 8, 2023, were ironic, given that Brazil had adopted extreme measures to defend its democratic institutions against the spread of lies and conspiracy theories” (102)—but when it comes to the United States, they don’t pause to consider that the distinctive pathologies of First Amendment law might be partly responsible for our present wave of censorship.
Democracies that regulate hate speech and disinformation regularly go overboard, and I appreciate Mchangama and Kosseff’s tireless efforts to call them to account. But democracies that refuse to regulate such extremist speech (mostly the United States) sometimes go too far in reverse, and I wish more treatments of free speech and democracy fully explored the tradeoffs in both directions.