SAN PAULO, SP (FOLHAPRESS) – Jacob Mchangama, 44, a Danish freedom of expression lawyer and author of Freedom of Speech (Basic Books, 2022), issued a warning to ministers of the STF (Supreme Federal Court), on bends with protection and suppression of information.
“The problem is that those who define what misinformation is also tend to have their own biases,” he says. “When the judiciary gets into this debate, it can backfire. This can undermine the credibility of the judiciary, which is necessary for the rule of law.”
He emphasizes that he has a smattering of knowledge of the situation in Brazil, just after the “gradual democratic regression”, and mentions that in a study carried out by the institute he leads, Justitia, together with Aarhus and Columbia Universities, support for freedom of expression showed limited support in the country. .
“More than 90% of Brazilians say it is very important for the media, individuals and the Internet,” he says. “But only 42% think he should defend words that offend religion, and only 38% think he should defend insults against his flag.”
The controversy of defending the freedom to express ideas with which people agree but disagree runs through history, which he details in his book, from antiquity onwards.
With the scale achieved by social media, cancellation across platforms is high on the agenda, left and right. Why does his book go to question him about the Weimar Republic and the censorship efforts against Nazi newspapers? What was the lesson at that time?
JACOB MCHANGAMA: One of the recurring arguments for limiting the online space is the need to protect democracy from hate and disinformation. In Europe, this argument is often made with reference to Europe’s totalitarian past. But, as I show in the book, the Weimar Republic in Germany was not a democracy based on the absolutism of free speech.
There was strict political censorship of radio, Nazi and Communist newspapers were often banned, and prominent Nazis such as Hitler, Goebbels, and Julius Streicher were punished or censored. Even more disturbing is the fact that the emergency laws that were supposed to protect democracy were used by the Nazis to destroy it. First of all, because of the possibility of using the laws of the Weimar Republic, which allowed censorship and the suspension of freedom of speech.
Can you explain the Milton Curse you cover in the book?
DM – This is a selective and unprincipled defense of freedom of speech. This refers to the English poet John Milton, who in 1644 published The Areopagitics, his famous call for freedom of the press. Milton declared: “Give me freedom to freely know, speak and reason according to conscience, above all freedoms.”
However, his defense of free speech was accompanied by many ifs and buts. He emphasized that by freedom of the press “I do not mean the papacy, which, since it eradicates all religions, must also be eradicated.” He also did not want to harbor ideas that were “impious or perverted against faith or custom”. If “evil and slanderous” books were still being printed, Milton saved them from book burning. Its purpose was to facilitate discussion of the “close differences, or rather indifference” that caused the Protestant sects to hang each other, not freedom and equal freedom of speech for all.
Eventually, Milton even joined the censor corps under Cromwell’s military dictatorship. That Milton, the scourge of censors, has become such is one of the great ironies in the history of free speech, although he is not alone when it comes to double standards of censorship.
And how does this curse now manifest itself in the censorship debate and demands?
DM: Today we see it happening around the world. See Brazil. In 2021, we conducted a study of attitudes towards freedom of speech in 33 countries around the world. Over 90% of Brazilians say that freedom of speech is very important for both the media and individuals and online. But only 42% of Brazilians think that free speech should protect words that offend religion, and only 38% think it should protect insults to their flag, which is admittedly beautiful.
So we often see people think that free speech should protect ideas they agree with, but not necessarily ideas or people they strongly disagree with. But if you think free speech should only protect harmless ideas, free speech is vulnerable at best. At worst it’s useless.
In Brazil, the members of the Supreme Council are responsible for organizing elections and making immediate decisions. And this year, publications were suppressed, some disinformation, while others were not. At the same time, they helped protect coverage when government agencies acted against it. Do you have any advice or historical parallels you could offer these ministers?
JM – I have only a superficial knowledge of the events in Brazil, so I need to be careful not to make statements without knowing the facts and the law in particular. But given the elections and the past few years, it seems to me that Brazil is going through a phase of deep polarization and gradual democratic regression. In such cases, it is often tempting to legislate to prevent propaganda and disinformation.
The problem is that those who define what disinformation is also have their own biases. Also, when it comes to political debate, it is often impossible to separate facts from opinions. When the judiciary gets into this debate, it can backfire because if they decide that certain ideas can be banned as disinformation, it will give the impression that judges are taking sides, denouncing one side and supporting the other. Not only can this be a risk to freedom of expression, but it can also undermine the credibility of the judiciary, essential for the rule of law.
Do you think police power is another step in the wrong direction for the Brazilian electoral court?
DM: Again, I’m not an expert on the Brazilian constitutional or electoral system and I don’t know the extent of misinformation in the digital ecosystem. But insisting on deleting information too quickly because of disinformation is like a system where you create a clear risk of unpopular opinions being deleted and where government agencies are empowered to decide what is true. It is hard to imagine that the real problems of online disinformation can be solved through online regulation and censorship.
American conservatives praised his book for questioning cancellation culture, but also criticized it for saying the same about right-wing pressure on so-called critical race theory. How do you see the future of free speech in the US?
DM: On the one hand, the United States has a developed culture of free speech compared to many other countries. But this American culture seems to be on the wane due to polarization and younger generations taking it for granted.
I worry that if this culture in the US deteriorates further, the very strong legal protection offered by the First Amendment could be weakened. And that Democrats and Republicans are beginning to use restrictive laws in a deeply biased way. That is why I believe that a principled commitment to freedom of expression is essential, especially in educational and media, social and traditional institutions where this freedom is practiced.
In 2020, the New York Post published an article about Hunter, Joe Biden’s son, which was hidden by Facebook and other social networks. What needs to be done to protect freedom of speech and even the press on these platforms?
JM: The deletion of an article from the New York Post was a disturbing example of moderation mismanagement. Ultimately, this may have helped the Republicans more than it hurt because the story was covered by so many media outlets that it became an example of the Streisand effect. [quando a tentativa de ocultar uma informação acaba por chamar mais atenção a ela]. But how many small stories potentially affecting democratic elections will be silenced without such disclosure, by arbitrary content moderation? Impossible to know.
The book explores the rise and fall of free speech in history, even in some unexpected places, of the 6th century BC Persian Empire. [Antes da Era Comum] medieval Catholic monasteries, while exposing the negative, and not just the positive, influence of the Gutenberg press. Do you see freedom of speech as a constant struggle?
JM – Let me quote the conclusion of my book: freedom of expression is still an experiment, and no one can guarantee the outcome of providing free and instant voice to billions of people. But this is a principle based on thousands of years of experience, often bloody, with the consequences of suppressing it.
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Jacob Mchangama, 44
Founder and CEO of the Justitia Institute in Copenhagen, the Danish lawyer is the author of Freedom of Speech – A History from Socrates to Social Media. In 2018, he was a visiting professor at the Global Center for Free Speech at Columbia University in New York.
