The First Amendment offers “no guarantee” to “hate speech,” is how Tim Walz, hoping to be the next vice president, put it during a television interview. That’s not true, although Secretary of State Marco Rubio seems to agree, at least when it comes to noncitizens—who, if they perpetrate “anti-Semitic conduct” that creates “a hostile environment for Jewish students,” can be kicked out of the country. Conduct, here, means speech; Rubio alone has the power to decide whether it’s bad enough to give law-abiding permanent residents the boot. Rubio’s theory is that “past, current, or expected [!] beliefs, statements, or associations that are otherwise lawful” can, if determined by himself to interfere with the United States’s foreign-policy interests, justify deportation.

“Not unlike the dinosaurs of Jurassic Park,” the Princeton historian Fara Dabhoiwala writes in his What Is Free Speech? The History of a Dangerous Idea, “the First Amendment was brought to life long after its bloodline had died out. But now we’re stuck with it.” As the second Trump administration attacks free speech and press freedoms on multiple fronts, we can only hope so!

Published this summer by Harvard University Press but largely written, presumably, during the Biden administration, Dabhoiwala’s skeptical history of Anglosphere—especially U.S.—speech libertarianism is veined throughout by a hostility toward its subject growing rapidly out of date. In that sense What Is Free Speech? is an instant artifact of the period during which it was researched and written. Beginning in the 2010s, a sizable force of American left-liberals revived earlier left-wing strictures against what they deemed oppressive political speech. Combined with commonsense objections to bigotry, this fairly exotic tradition, Marcusan in spirit and sometimes in name, seemed to justify a new class of panoptic hall monitors. Social media was one forum for exerting control; the denunciatory open letter another; the newsroom union, as at the New York Times, a third. (For a while after the murder of George Floyd, such unions worked not to protect journalists imperiled by management but to pressure management to punish journalists who said the wrong thing.) Everyone knows this happened, and some pointed it out at the time. Yet when other liberals, aghast at the bullying glee with which their former friends sought to tell everyone else what they couldn’t say, tried to warn about which side ultimately wins when free speech loses—remember the 2020 Harper’s letter?—they were mocked and vilified.

When he is not attacking a tradition of U.S. civil libertarianism he cannot keep himself from insulting (“the arid reductionism of recent American presumptions”), Dabhoiwala is an eloquent guide to its development. Although he says in the introduction that this book is not “about legal history but about the politics of free speech more generally,” it is in fact especially cogent and informative on changes in First Amendment jurisprudence. For the eighteenth and most of the nineteenth centuries, the First Amendment was understood to restrain only the federal government, not the states, from infringing on rights of speech and of the press. And not until the twentieth century, beginning in 1919 and with increasing latitude across the next hundred years, did it come to be interpreted as conferring the right to speak and print almost anything you wanted. Today, that seems to many to be the real and even obvious core of the brief, aphoristic text of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Star billing goes to Oliver Wendell Holmes, who served on the Court from 1902 until 1932 and whose thinking about the First Amendment became increasingly permissive over the years, and to Hugo Black, who served on the Court from 1937 until 1971 and who liked to ask litigants to read the text of the First Amendment out loud. “As soon as they uttered the phrase ‘no law,’” Dabhoiwala recounts, “Black would say ‘thank you’ and take back the booklet—as far as he was concerned, there was nothing more to discuss.” Along the way, we get a useful summary of how left-wing lawyers used the Court’s developing penchant for First Amendment absolutism to introduce protections for American socialists and Communists, and of how the American Civil Liberties Union transitioned from left-wing advocacy dedicated to the sectarian goal of securing rights for socialists to principled free-speech absolutism dedicated to defending the right to speak in general, including the right of Nazis and the Ku Klux Klan to spew bigotry.

One of Dabhoiwala’s reasons for writing What Is Free Speech? is to show that things could have been otherwise—that we could have ended up with more closely regulated speech codes comparable to those in Europe. Major Supreme Court decisions were close; more permissive speech regimes have rarely seemed intuitively appealing to a majority of the population; public-order concerns, religious sensitivities and hostility to scurrility and defamation had always constituted compelling checks on too much speech. A better system than ours, Dabhoiwala says, would weigh the good of speaking freely less heavily against countervailing considerations, like the moral harm caused by bigoted speech and the epistemic harm caused by misleading speech. But unfortunately, an absolutist First Amendment jurisprudence and the larger culture of permissiveness it reflects and reinforces have rendered all such problems beneath consideration. “By and large, as a consequence,” he writes, showing his hand, “twenty-first-century Americans have become as inured to the extraordinary levels of lying and slander in their public discourse as they have to the equally staggering incidence of mass murder by guns in their schools and streets, and for the same reason—the acceptance of a relatively recent and novel set of presumptions about the meaning and importance of constitutional clauses drawn up two hundred and fifty years ago.”

As a history of how we got here, What Is Free Speech? is often excellent. As an argument that America would be better off with a less thoroughgoing formal embrace of free speech, it is badly underpowered. As I write this, Donald Trump has just introduced a somewhat confusing executive order establishing “measures to combat desecration of the American flag.” Meanwhile, his Department of Health and Human Services is trying to resuscitate the category of hate speech, long defunct in American law, to punish Harvard University for permitting anti-Israel protest language on its campus. Notably, the logic of the latter action echoes the playbook of left-liberals who spent the last decade and more campaigning for fresh restrictions on what can be said. Under existing First Amendment law, both of these transparent efforts at suppressing political speech are likely to fail in the courts. Things could certainly have gone differently. Dabhoiwala does not show that we should want them to have.

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What Is Free Speech? does a fine job evoking the riotous, no-holds-barred culture of political pamphleteering out of which the doctrine of American press freedom grew, from the acerbic eloquence of John Milton in the seventeenth century to the scurrilous, abusive, but also widely inspiring work of British and colonial polemicists of the eighteenth. But in his zeal to impugn modern-day American speech libertarianism, Dabhoiwala insists, with a stridency that cannot conceal its logical inconsequence, that the theory of press freedom developed out of the eighteenth century can never transcend the mucky contingencies of its origins. This defect especially mars his discussion of the “Cato” of “Cato’s Letters,” the most famous of the eighteenth-century British pamphleteers, whose influence on the American colonies was enormous.

The author of “Cato’s Letters” was actually two men, John Trenchard and Thomas Gordon, who between them wrote over one hundred essays in the early 1720s on politics, power and the press. The name in their title was borrowed from the Roman Cato the Younger, an opponent of Julius Caesar and a popular figure among critics of government in the eighteenth century, especially after the huge success of Joseph Addison’s 1712 play Cato, A Tragedy. In the American colonies, Addison’s play and Trenchard and Gordon’s “Cato’s Letters” were very well known; as Bernard Bailyn puts it in his magisterial The Ideological Origins of the American Revolution (1967), the three together “gave rise to what might be called a ‘Catonic’ image, central to the political theory of the time, in which the half-mythological Roman and the words of the two London journalists merged indistinguishably.” A not inconsiderable portion of the rousing rhetoric of free speech attributed to the American founders—for instance Benjamin Franklin’s “Without Freedom of Thought there can be no such thing as Wisdom & no such thing as publick Liberty without Freedom of Speech,” immortalized in a quotation on the wall of the Capitol building—was lifted wholesale from “Cato’s Letters.” Popularizers of a body of free-speech theory going back to the seventeenth century, which they condensed and streamlined, Trenchard and Gordon “essentially invented the modern ideal of political free speech,” as Dabhoiwala justly says.

Dabhoiwala is concerned to debunk that modern ideal, but his handling of Trenchard and Gordon shows him uncertain how to go about it. Because both were strong partisan critics of Parliament, Dabhoiwala decides that their defense of press freedom is little more than a self-interested tactic in a local political struggle, to be cynically invoked and just as cynically abandoned. Gordon, after all, politically persecuted and broke, turned traitor to his cause and began working for the government, for which he wrote propaganda. Dabhoiwala scolds modern political theorists and legal historians for being “oblivious to the venality of eighteenth-century media and politics,” and therefore of “treat[ing] Cato’s propositions as coherent, disinterested and sincere.” But it matters only that they are coherent, or can be made to be.

Things go even more wrong when Dabhoiwala tries to show that, “from its inception, free speech was a racialized ideal”—and also “a deeply gendered theory.” How so? First, because Britain was a slaving empire; the very newspaper that enthusiastically retailed Cato’s assertion that “men are naturally equal” also advertised slaves. Second, because in one letter, Trenchard celebrated the industry of “the English planters in America” in “maintaining themselves and ten times as many Negroes.” Third, because in the eighteenth century the public sphere was conceived as male. (True enough, but this doesn’t mean that the conception of press freedom developed then cannot transcend its origin.) Fourth, because Trenchard had investments in the South Sea Company, which was involved in slave trafficking, and because at mid-century Gordon’s children emigrated to Jamaica and became slave owners. This damning construal of rather remote entanglements is generalized in Dabhoiwala’s larger account of slave-holding colonists’ defense of free speech. For instance, after narrating the brutal suppression of a 1739 slave rebellion in South Carolina, which included the denial to the enslaved of basic freedoms of association and communication, Dabhoiwala insists: “The free speech of some is established through the silencing of others.” This suggests a logical connection where none is shown. Rather than simply condemning the colonists for their monstrous cruelty and hypocrisy, Dabhoiwala tries to pretend—without ever demonstrating—that the emergence of a free press (for the free) in a slave society depended either practically or theoretically on the fact of slavery. More than hypocrites, Dabhoiwala’s colonists are bad philosophers. “Of course,” Dabhoiwala acknowledges, perhaps anticipating objections like mine, “corrupt motives don’t necessarily lead to invalid arguments—but in this case they did. Trenchard and Gordon’s theory”—and by extension the theory of the colonists who loved them—“was profoundly flawed.” But he never tells us how.

“Keeping other humans in bondage was never in contradiction with early white Americans’ views on freedom of speech or action: it sustained it,” Dabhoiwala says. The first part of the sentence is true enough, and names an evil paradox (a word he explicitly rejects for “whitewash[ing] the truth”) at the origin of the American project. (In fact, eighteenth-century observers were keenly aware of what one called the “glaring inconsistence” between Revolutionary claims and the existence of chattel slavery.) The second part is a conspiracy theory; there is no sense in which the institution of slavery depended on free speech for its survival. People on all sides of the slavery issue sometimes invoked free speech, with varying degrees of hypocrisy and self-knowledge. As Dabhoiwala himself tells us, the concept was sacred to the abolitionists and to many of the enslaved themselves; Frederick Douglass’s declaration in 1860 that “slavery cannot tolerate free speech” does not mean that he did not grasp the historical fact that slavery and free-speech ideology had coexisted for over a century in the Anglosphere.

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In the United States, the only threats to speech Dabhoiwala is inclined to recognize come from the political right and from corporate power over the media, although in a comparative context—as in his sketch of totalitarian speech regulation in the Soviet Union and in contemporary China—he is willing to acknowledge that government control of any stripe can be a very bad thing. Modern-day speech regimes in England, France, Germany and other Western nations with less libertarian impulses than the U.S. are not much mentioned, except as implicitly superior to our own. Because of the First Amendment’s overweening concern with protecting against government incursions on speech rights, “no other culture in the world is as permissive towards the public expression of its citizens’ political views, broadly defined—even if hateful, untruthful, antidemocratic or genocidal.” The American allergy to state interference is, Dabhoiwala suggests, a peculiarly parochial inheritance. “No other country in the world bases its rules about freedom of expression on an archaic document drawn up more than two hundred years ago by violent rebel settlers deeply distrustful of governmental power and obsessed with individual liberty for propertied white men.”

It is true that eighteenth-century American intellectuals and their libertarian British counterparts were so obsessed. If power “at first … meets with no control,” it “creeps by degrees and quick subdues the whole,” as an American versifier put it in the late 1760s. This extreme skepticism of government power united otherwise disparate strands in colonial American thought. “The point they hammered home time and again,” Bailyn writes, “freethinking Anglican literati no less than neo-Calvinist theologians,” was “the incapacity of the species, of mankind in general, to withstand the temptations of power.” This anthropological conviction remains alive in American civic and legal institutions, including the history of First Amendment jurisprudence and the activism of groups like the ACLU and the Foundation for Rights and Individual Expression.

It is less alive in Europe, even in England, where it has its origins. Dabhoiwala’s optimistic assessment of the rest of the world would have benefited from a closer look at how curbs on expression actually work there. Civil libertarians like Jacob Mchangama, author of Free Speech: A History from Socrates to Social Media (2022), have been tireless in compiling the often-perverse outcomes of hate-speech regulation in Europe. In Denmark, a 2016 law targeted Islamic preaching if it “condones” crime or holds “anti-democratic” positions, although regular citizens remain free to do both. In Germany, laws prohibiting Nazi imagery were used to prosecute a man for a blog post in which he criticized what he saw as the racism of some local politicians by mocking them with a picture of Heinrich Himmler (his point was that they were behaving like Nazis). In France, pro-Palestinian protesters have been convicted of the crime of endorsing boycott and divestment campaigns against Israel, and an LGBTQ activist was fined for calling the president of a conservative “family-values” organization a “homophobe.” In Scotland, a law prohibits speech intending to “stir up hatred” even behind closed doors. In Spain, the left-wing rapper Pablo Hasél was convicted and sentenced to jail “for glorifying terrorism and slandering the crown and state institutions,” in the BBC’s summary.

And in England, earlier this year, a fifty-year-old Kurdish-Armenian man named Hamit Coskun was fined for burning a Qur’an in public. He intended a protest against the Islamist assault on the constitutional secularism of his native country, Turkey. He was beaten, hospitalized—and then charged with disorderly conduct and found guilty. He is appealing.

This resurgence of a de facto blasphemy law in England undoes the progress begun in the late 1980s, triggered by the Salman Rushdie affair. At that time, only Anglicans were protected by England’s blasphemy laws. But a coalition of liberals concerned about the feelings of religious minorities and Islamic and Christian conservatives was working to expand the law to cover all religious groups. Then, stoked by hardline Muslim politicians and clergy, Islamist violence over Rushdie’s Satanic Verses erupted across the country and the world. The ultimate effect was to convince British lawmakers that expanding blasphemy laws would give the most supersensitive—and the most violent—a disproportionate degree of power over discourse about religion. In 2008, even the old law protecting Anglicanism was finally repealed.

Dabhoiwala, resorting to a fashionable idiom of our time, accuses libertarian approaches to expressive rights of reducing free speech to “a perennially weaponized slogan.” Perhaps he would consider the judgment against Coskun exemplary of the kind of case-by-case sensitivity he recommends in place of any one-size-fits-all legal protection for offensive speech: when it comes to “truly injurious” speech one must “consider the exact context and effect of every controversial utterance.” Among the questions we should ask: “Does it demean a vulnerable immigrant minority to ridicule their holiest beliefs?”

A more persuasive story would focus on the “weaponization” of assertions of emotional and moral harm invoked to limit speech, perhaps especially speech involving anyone’s “holiest beliefs.” This was a predictable development. Back in 1950, Eleanor Roosevelt had identified the risk that rules against harmful speech would extend to “blasphemy,” thereby granting theocrats and religious authoritarians undue power over the public sphere: “Any criticism of public or religious authorities might all too easily be described as incitement to hatred and consequently prohibited.” Across Europe, de facto and sometimes de jure prohibitions against “hate speech” have all too often circumscribed expressions of anti-Islamic speech. As with the Rushdie affair, this was usually not an organic uprising of popular sentiment; it was directed by religious and state actors hoping to protect Islam from the kinds of skeptical attention Christianity has long received in the West. In 1999, for instance, as Mchangama recounts, the Organization for Islamic Cooperation, which represents 57 states, worked hard to convince the United Nation’s Commission on Human Rights that it should criminalize “defamation of religions.” More farcically, the harm speech can do had by the 2010s become a kind of fetish, wielded hysterically in academia, media and other meaning-making institutions against the most trivial supposed slights. It was as if the risk of blasphemy had become diffuse, generalized, with classrooms and newsrooms caught up in an ever-finer mesh of newly minted taboos.

The First Amendment has so far prevented pressure against blasphemy from being legally enforceable in the United States, but recent events highlight the susceptibility of sensitivities around hate speech and minority harm to manipulation by clerical and state actors hoping to control the terms of political debate. The extraordinary effort of the Trump administration and the Israel lobby to equate criticism of Israel with hatred of Jews, and then to weaponize—the word is sometimes appropriate—civil rights law to force colleges to restrict political speech about the war in Gaza is our own homegrown version of the various European hate-speech debacles. And unfortunately, in its current form, actually-existing American speech maximalism has left one group outside of its protections—noncitizen residents, including green-card holders. As Marco Rubio’s dangerous attack on the speech rights of noncitizens makes clear, unresolved tensions between immigration law and First Amendment law render politically disfavored speech by noncitizens extremely risky. In a spectacular move, the Trump administration detained Columbia graduate and lawful permanent resident Mahmoud Khalil for three months for purely speech-related reasons: as a student, Khalil had been an outspoken critic of Israel’s war in Gaza and a spokesman for the group Columbia University Apartheid Divest (CUAD).

CUAD is a frank apologist for Hamas; Khalil expressed sympathy for their supporters in a recent interview with Ezra Klein in the New York Times. Most of the noncitizens targeted for deportation, like the Turkish Tufts student Rümeysa Öztürk, appear to be guilty of nothing more extreme than criticizing Israel. The whole point of a principled commitment to free speech is that it shouldn’t matter. But any version of Dabhoiwala’s supposedly nuanced correction to free-speech absolutism would render large swathes of the pro-Palestinian protest movement even more legally vulnerable than they already are. With luck, the courts will resolve the dispute between Khalil and Rubio in favor of the First Amendment. Does hoping so make me one of the crude “absolutists” Dabhoiwala faults for fanaticism?

As social and legal history What Is Free Speech? is a wonderful tour; no one knows so much about the subject that they won’t learn something here. But as a normative intervention, Dabhoiwala’s book participates in a dispiriting vogue for censorship, one whose time should be up. In another generation, intellectual historians like Dabhoiwala will look back to the present and ask themselves how it happened that, early in the 21st century, such a sizeable swath of the Anglophone intelligentsia turned against one of its own best, and most ennobling, traditions.