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U.S.—speech libertarianism is veined throughout by a hostility toward its subject growing rapidly out of date.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.”