Does the term ‘freedom of speech’ beguile and deceive us with its power and simplicity? All shades of political opinion support this principle and yet differ on how they understand it. Disagreements over its meaning have become a persistent feature of political life, with much depending on whether one takes an absolutist view, where the individual’s right of unrestricted expression is privileged, as in the US, or one that balances and limits individual expression by recognising that words can cause harm, as in the UK and most of the world.

Recognising that language has power, the political left has sought, to the chagrin of the political right, to counter myriad forms of discrimination by regulating speech that offends religious sensibilities, sexual orientation and gender and ethnic identities. The political mainstream has been more concerned with expanding sedition laws and terrorism legislation to target groups with undemocratic ideologies, such as radical Islamists and the neo-Nazi right, but have also used these laws against social justice activists and political dissent.

For the populist political right, these conflicts over free speech have coalesced into an incoherent but politically potent programme that co-opts the left’s language and policies of anti-discrimination but mobilises them in favour of majoritarian populations or privileged social groups. This mobilisation of codes regulating offence and suppressing dissenting political views is most clearly evident in the Western led censoring of pro-Palestinian advocacy on the basis of alleged ‘antisemitism’.

In the United States, for example, the Donald Trump administration has invoked freedom of speech while simultaneously cracking down on diversity and political dissent. This was first evident in its push to allow extreme right-wing speech on social media platforms, and in universities, whilst censoring pro-Palestinian advocacy under the guise of alleged antisemitism. After the murder of Charles Kirk, allegations of hate speech have been mobilised to cancel and censor any criticism of his right-wing politics.

In this double move of proclaiming a commitment to free speech while cracking down on dissent, the Trump administration is not alone. Are these invocations of freedom of speech, that go hand in hand with curtailment, evidence of rank hypocrisy? Or are they a constitutive feature of speech in social and political conditions? The two possibilities are not mutually exclusive, which suggests that the critical question is who, and on what basis, gets to police the line between legitimate and illegitimate expression?

These are difficult questions but both Fara Dabhoiwala’s historical essay, What is Free Speech: The History of a Dangerous Idea and Rebecca Ruth Gould’s reflections, in Erasing Palestine: Free Speech and Palestinian Freedoms are valuable and stimulating inquiries that shed considerable light on the complexities involved. Dabhoiwala, an Indian born, British trained historian, moved across the Atlantic to Princeton shortly before Trump’s first election, whereas Gould, a US humanities scholar of Jewish descent, travelled in the other direction – to the University of Bristol in the UK. They encounter transatlantic difference in understandings of free speech, face contrasting problems and while acknowledging that the rhetoric of free speech functions to conceal exclusions nonetheless come to opposing conclusions. Gould grapples with a heavily regulated framework where an anti-racism ethos has been weaponised to suppress political dissent through allegations of antisemitism, whereas Dabhoiwala is troubled by how the US’s absolutist approach enables myriad forms of social harm.

Gould finds herself, in early 2017, to be the first UK-based academic charged with antisemitism. This happened shortly after the UK’s Conservative government, in December 2016, adopted the IHRA (International Holocaust Remembrance Alliance) definition of antisemitism. Gould argues that this document enables political criticism of Israel to be conflated with antisemitism and thereby, under the guise of laws against “hate”, effectively silences pro-Palestinian voices. She maintains that only a commitment to free speech absolutism, a position that entails dispensing with regulations on offensive speech, can prevent marginalised or dissenting views from being censored. Dabhoiwala, by contrast, is prompted by the spread of misinformation, lies, hate and abuse, especially during Trump’s first election campaign, to argue that free speech absolutism, seemingly grounded in the US Constitution’s first amendment, sows division, poisons the social body and legitimates expressions of hate that cause harm.

Gould was charged and investigated on the basis of a student’s allegation that a publication critical of Israel’s policies towards Palestinians was antisemitic. The allegation triggered the interest of various individuals and organisations that form a network dedicated to surveying, identifying and litigating possible instances of “antisemitism”. This infrastructure of accusation has been used to target many pro-Palestinian academics in the US and the UK, resulting in a situation in which support for Palestine is “viewed as presumptively antisemitic”. Scapegoating and silencing pro-Palestinian advocacy has gone hand in hand with the physical and territorial erasure of Palestine. The genocide in Gaza is testimony to this ongoing project.

The IHRA definition was the outcome of Israel’s attempts to combat what it termed the “new antisemitism”, that is, political criticism of Israeli policies. In equating political criticism of Israel with antisemitism the IHRA definition has been extraordinarily successful in censoring dissent while weakening the conventional understanding of antisemitism as religious and racial animus. Figures as diverse as the Irish prime minister, the lead prosecutor of the International Criminal Court, UN agencies, activists such as Greta Thunberg, and a host of artists, intellectuals and academics, including many Jews, have been accused of antisemitism. They counter that it is ludicrous to label criticism of Israeli policies such as arbitrary arrests, apartheid, ethnic cleansing and genocide – and much else besides – as antisemitism.

The conflation of religion and politics, of Judaism and Israel, is a reflection of Zionist ideology. As such, when governments and institutions adopt the IHRA definition, they further the project of identifying Israel with Judaism at the expense of Judaism as a religious tradition, and of those Jews who seek to distinguish their faith from an ethnonationalist political project. Moreover, in transmuting political dissent into ‘hate’, the IHRA definition transforms protest into racism. It is no coincidence that one of the major UK based pro-Israeli organisations that counters Palestinian advocacy calls itself ‘Stop the Hate’.

The IHRA definition, Gould observes, has been adopted by many right-wing governments and populists whose antisemitism is conveniently masked by this performative politics. But it is its acceptance, formally or informally, by universities that is perhaps most distressing. This has led to a censorious milieu and moral malaise. “Fear of being accused of antisemitism makes it difficult to speak out,” Gould says, “and it is why so many of us who witness anti-Palestinian discrimination…keep silent. Our silence is complicity. This complicity also silences Palestinians, keeping their experiences hidden from public view.” Self-censorship is compounded by the universities’ response to allegations of antisemitism against their faculty. Rather than uphold academic freedom and independent inquiry, they have all too often sacrificed these principles to protect their own interests.

This leads Gould to the sobering and withering assessment, that in the UK, “Far from being havens for the free expression of critical and dissenting views, universities police speech even more heavily than it is policed outside their walls.” Given this cynical application of law in the service of moral and ethical abnegation, Gould argues that regulations on offensive speech have only served to expand bureaucratic apparatuses of surveillance and the power of the state. The only way to express political dissent and recover moral autonomy, she contends, is to revoke speech codes entirely. Consequently, she advocates a commitment to US-style free speech absolutism as crucial for the protection of politically marginal expression from censorship.

In arguing against laws regulating offensive speech, Gould breaks with the left who she charges with ceding the issue of free speech to the political right. The latter, chafing against what they pejoratively characterise as ‘political correctness’ or ‘woke’ have historically supported free speech absolutism and at the same time weaponised laws on offensive speech in support of majoritarian views and sentiments. Given that criticism of Israel is particularly widespread amongst leftists and Muslims, the IHRA definition has, in the West, become an effective instrument with which to stigmatise and police these groups. Developments in the US, where the wholesale adoption of the IHRA definition of antisemitism by state governments, and by public and private institutions, has effectively created a caveat to first amendment free speech absolutism does make Gould’s arguments for ending hate speech codes in the UK worth considering. However, the consequence of such a stance would be to allow, as in the US, racist speech to be legitimate in the public domain.

Dabhoiwala, whose interest in free speech is largely prompted by the toxic public sphere enabled by US first amendment absolutism, takes a more traditional liberal-left position on the necessity of regulating various forms of harmful speech. He finds that approaches that balance rights with responsibilities have historically been predominant and remain globally prevalent – US free speech absolutism with its emphasis on individual rights is an exception. How, why and when, he asks, did this libertarian absolutist conception of free speech emerge? Given that this approach prioritises personal expression over the social good, does it effect a transformation of values? He notes that “freedom of speech” is not a singular thing but can have multiple and varied rationales and aims. As such, conflict over disparate values are inevitable. In this conflictual and messy world, an absolutist argument, while having the virtue of simplicity and ready-made applicability, avoids and side-lines complex and difficult debates about the values that underpin invocations of free speech.

As a historian, Dabhoiwala tracks the emergence, uptake and development of modern free speech arguments that arose in early 18th century England but fast became a transnational phenomenon as they were adopted by Scandinavian governments as well as inspiring the US Constitution’s first amendment. Throughout his critically informed history, he situates arguments for free speech, such as the pursuit of truth, the expansion of liberty and the development of personal autonomy within the context of political struggles and antagonisms. Importantly, he includes colonial India where free speech arguments had to be parsed as only applying to the “civilised” colonisers. In all contexts, free speech articulations and practices were partial and problematic – almost always excluding vast swathes of humankind from their exercise e.g. women, the colonised, the enslaved etc. Conventional accounts of free speech, which locate it within a narrative of freedom’s progress, fatally omit considerations of power over who can speak and, as importantly, who can be heard.

US free speech absolutism, understood as grounded in the first amendment, is thought of as foundational and continuously present in US history but Dabhoiwala, in one of his principal contributions, finds that this absolutist conception was ignored for the first hundred and fifty odd years. Not only was the first amendment understood as subordinate to state law, which imposed restrictions on harmful speech, but it was considered as granting a qualified, as opposed, to an absolute right.

The current interpretation of free speech absolutism is, he finds, of relatively recent origin only coming to full fruition in the 1960 and 1970s. He provides a complex and nuanced account but broadly speaking there were two key developments that enabled the shift from a balanced to an absolutist position, and as with much in the US, the struggle over slavery was one of the principal arenas through which this occurred. Firstly, social justice activists in struggles against slavery, and against suppression of political dissent, invoked the first amendment as a national and individual right. Later and secondly, restrictions on hate speech were undermined when these provisions were weaponised by white supremacists, who in the 1960s brought cases on the grounds that they had been libelled by civil right activists – an early example of what is now called lawfare. This led the then liberal Supreme Court to emphasise free speech over state laws and over group-libel (hate speech), thereby emphasising personal individual rights and in effect legitimating hateful expression as protected political speech. Eventually this libertarian approach has led to first amendment rights being extended to advertisers, corporations and lobby groups, thereby entrenching the powerful.

Freedom of speech is then, in Dabhoiwala’s account, a dangerous idea in two ways. It is positively dangerous in that it allows for challenges to power and orthodoxy. However, it is negatively dangerous because it can be manipulated and mobilised by the powerful for their own ends. While exclusion has been the principal mechanism of restricting speech in the contemporary US, the dominance of free speech absolutism, in which an individual’s expression is the ultimate value – and where every opinion is considered as equally valid – has led to the devaluation of alternate political values but also forms of expertise and practices of considered judgement.

Historical practices of exclusion then have been supplemented by a series of devaluing practices that by treating all expression as equally valid ‘opinion’ effects a delegitimation of knowledge, expertise and the public interest. Hence opinions of conspiracy theorists can, for example, be treated on par with scientifically trained experts on many issues such as climate change, vaccine efficacy etc. The outcome of this approach, which in treating all opinion as equally valid is to protect racist speech and enable the proliferation of misinformation, has been, when amplified by social media technologies, the creation of a toxic public sphere.

The Trump regime’s double move of enabling ideologically approved speech while at the same time finding mechanisms with which to disable politically opposed speech reached its apex with the mobilisation of hate speech codes such as the IHRA definition of antisemitism to suppress pro-Palestinian advocacy. But in the wake of Kirk’s death the administration is now trying to apply ‘hate’ as the pretext to censor liberal and left opinion. Gould suggests that a consistent and rigorous free speech absolutism is the way to counter this double bind. While the elimination of hate speech codes could protect political dissent Dabhoiwala’s history suggests that allowing various harms of harmful speech would only intensify antagonisms and reduce the capacity of communication across social and political divides.

Despite their differences, both Gould and Dabhoiwala’s interventions share a recognition that the act of speaking implies, and requires, an underlying ethics. In Gould’s account, the legal regulation of harmful speech, especially of hate speech, substitutes the force of law for an individual’s ethical judgment. More often than not, one is compelled to follow the law even when one knows that it is wrong. The costs of opposition, in stigmatisation, criminal sanctions or losing one’s job, can be too high. Speech codes vest power in a bureaucracy that seeks to protect institutional interests. By eliminating codes, and thereby an alienating apparatus, one can recuperate the moral autonomy of the individual. Dabhoiwala, on the other hand, sees unrestricted free speech that privileges individual opinion as disregarding how speech as a social act requires consideration of others. As a social act, it implies an ethics of responsibility. Premodern societies, he points out, understood that “speech was not a simple right but a complicated ethical matter.” The modern rights-based idea of “freedom of speech” whilst a powerful formulation might, however, be a misleading one. It is difficult to be against ‘freedom’ yet modern societies, including those that trumpet free speech, have always regulated and circumscribed types of speech that cause harm.

The crucial issue then is not to be seduced by the word ‘freedom’ but to grasp the social and political values that inform ethical and legitimate speech – perhaps it is time to shift the focus from ‘freedom of speech’ to an ethics, both personal and political, of speaking.

Asad Ali is social-cultural anthropologist who works on the law, language and colonialism. He has taught at various North American universities including Harvard.

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