Free Speech Under Pressure: Jacob Mchangama on Germany & the US

Is free speech under threat in the world's leading democracies — including Germany and the United States? 

In this episode of Over Here, Over There — the podcast across borders, host Claudia Koestler talks with Jacob Mchangama, Danish lawyer, professor at the Foundation for Individual Rights and Expression (FIRE), and author of Free Speech: A History from Socrates to Social Media, recorded live at the Amerikahaus in Munich.

Mchangama is one of the foremost global experts on free speech, civil liberties, and democratic backsliding. In this wide-ranging conversation, he argues that we are living through a global free speech recession — and that both Europe and the United States are moving in a more speech-restrictive direction, each for very different reasons.
In this episode:

🇩🇪 Why free speech in Germany is fundamentally different from the US — and what history has to do with it
🇺🇸 How the Trump administration is challenging democratic norms — and why the First Amendment is the last line of defense
🌍 The "global free speech recession" — which countries are getting it right (Taiwan, Hungary, Denmark) and which are not
📱 Social media, algorithms, and disinformation — are platforms really radicalizing users?
⚖️ Hate speech laws vs. free expression: where should the line be drawn?
🏛️ What democracies must do to protect themselves — without becoming what they fear
🤖 AI, information access, and why you must never outsource your mind

Key quote from this episode:"Free speech is the first freedom of a democracy — without it, none of the other rights or democratic processes are really possible." — Jacob Mchangama

About Over Here, Over There: :Over Here, Over There is a transatlantic podcast hosted by Claudia Koestler and Dan Harris, sharing and comparing news, politics, culture, and current affairs across the Atlantic. Recorded often at iconic and esteemed venues.

🎙️ Subscribe for new episodes every other week.
📍 Recorded at Amerikahaus München, Munich, Germany.

Transcript

This transcript has been lightly edited for clarity, punctuation, and readability while preserving the substance of the conversation.

Section 1 (0:00–2:08)

CLAUDIA KOESTLER (0:00)

Is free speech dying? Are democracies helping to kill it? And what can we learn from others to protect the right to speak our minds?

I'm Claudia, and this is Over Here, Over There, your podcast across borders, comparing news and views across the Atlantic.

Today I'm at Amerikahaus Munich with Jakob Mchangama—Danish lawyer, U.S. professor, and one of the world's leading experts on free speech. He's just given a talk here at the Bavarian Amerikahaus, and what he told me about Germany, the United States, Europe, and where free expression is headed globally is something everyone needs to hear.

Let's get into it.

CLAUDIA KOESTLER (0:39)

When was the last time that you actually felt somehow restricted in your free speech?

JAKOB MCHANGAMA (0:46)

Oh, that's a good question.

I'm lucky enough to have been born and raised in secular, liberal Denmark. I now live in the United States, which has the strongest constitutional protection of free speech of any democracy.

So I don't face any real legal constraints. But, like most people, there are also cultural norms that sometimes make you think twice or self-censor, depending on the occasion.

Today I had just given a talk on free speech in Germany—a country where this topic can be quite delicate. So perhaps today I expressed myself a little differently than I would have if I'd been speaking in the United States.

CLAUDIA KOESTLER (1:33)

Okay. Could you walk me through that? Why is it different in Germany than it is in the United States?

JAKOB MCHANGAMA (1:39)

Because of German history, the limits on free speech in Germany's militant democracy are very different from those in the United States.

In the United States, the First Amendment protects hate speech and extremist views unless they amount to incitement to imminent lawless action.

These historical differences mean that assumptions about free speech in the two countries are informed by different realities, different histories and different traditions.

Section 2 (2:08–7:13)

CLAUDIA KOESTLER (2:08)

But we live in a globalised world nowadays, so it's probably quite hard to maintain boundaries in one country and not in another, because people might not know about those boundaries, or they might deliberately try to push them. How do you address that?

JAKOB MCHANGAMA (2:26)

Yes, that's true, and it's one of the things that makes free speech so complicated.

Something can easily be taken out of context. There are things that I said today in my talk that would be absolutely illegal in China or in other authoritarian states. But I think it's a good thing to be able to challenge authoritarian norms, and I don't think we should self-censor out of fear of authoritarian governments.

CLAUDIA KOESTLER

Where would you personally draw the line?

JAKOB MCHANGAMA

I don't think you can draw a single line that applies in every case, but generally I'm in favour of the American approach.

The American approach says that the government cannot restrict speech outside a few very narrow categories. One of those is incitement to imminent lawless action. You can't punish speech unless it is intended, and likely, to produce imminent unlawful action. That's a very, very high bar.

This means, for instance, that a few years ago in Nashville there were neo-Nazis standing with swastikas outside a synagogue, shouting antisemitic slogans. That would almost certainly land you in prison in Germany.

But in the United States, that is protected speech.

One of the reasons for that is not because America has any admiration for National Socialism. Quite the opposite. Many minority groups—including Black Americans during the Civil Rights Movement—recognised that wherever you have restrictions on free speech, it will always be the majority that defines and enforces those restrictions.

As a result, restrictions on free speech have very often been weaponised against minorities. That's why many civil rights advocates regarded broad speech restrictions as dangerous.

The German approach looks at things differently.

It says that one of the reasons the Weimar Republic collapsed was because anti-democratic movements used democratic freedoms and democratic institutions to gain power. Therefore, Germany believes it needs a militant democracy—one that denies certain freedoms to those who would ultimately deny them to everyone else.

CLAUDIA KOESTLER (4:42)

Do you feel those countries are now almost swapping places—that Germany is pushing further towards restrictions, while America is moving in the opposite direction?

JAKOB MCHANGAMA (4:55)

I think that, at this moment, most democracies around the world are moving in a more speech-restrictive direction.

The difference between Germany and the United States is that the U.S. Constitution—and particularly the First Amendment—still provides a very effective check on government power.

Donald Trump has lost a number of court cases where he and his administration attempted to detain students over alleged antisemitism, crack down on universities, or go after newspapers. Because the First Amendment sets such a high constitutional bar, many of those efforts have failed.

In Germany, however, because of the understandable fear of repeating the past, my analysis is that the instinctive reaction is often to conclude that more speech restrictions are needed.

We've seen legislation such as NetzDG, which was introduced to require social media platforms to remove illegal content. We've also seen greater emphasis on prosecuting citizens for illegal online comments, including insults directed at politicians.

Following the murder of Walter Lübcke, Germany expanded criminal provisions relating to malicious defamation and insults against people in political life. Since then, we've seen a significant increase in prosecutions over online comments.

Some of those comments—for example, calling a politician a liar or making fun of them through internet memes—would be unquestionably protected speech in the United States.

Here in Germany, however, we've seen people prosecuted for similar comments, and in some cases even having their homes searched by police.

I think that's a dangerous development.

At the same time, there are dangers in the United States as well. Even though the Constitution provides very strong legal protection, governments can still pressure media companies, law firms and other institutions into conforming, even when they are under no legal obligation to do so.

Section 3 (7:13–13:05)

CLAUDIA KOESTLER (7:13)

Do you see the doors closing overall, or are they opening up?

JAKOB MCHANGAMA (7:18)

Yes, I do think we're living through a global free speech recession.

I don't think free speech will disappear within the next decade or two, but I do believe the overall trend is very concerning and moving in the wrong direction.

That includes press freedom in many places, including the United States, where the current administration is attacking the press in a number of ways. But we also see journalists increasingly being imprisoned—or, in some countries, even killed. Those developments obviously have serious consequences for press freedom and for citizens' access to information.

CLAUDIA KOESTLER (8:00)

Are there any countries—or even an entire region—that you think we should look to as an example? A place that's getting the balance right between freedom of speech and the need to limit hatred and incitement?

JAKOB MCHANGAMA (8:21)

When it comes to legal regulation, I would still prefer the American model, even regarding hate speech.

I don't believe the best way to combat hate speech is through restrictive laws.

That said, there are also other countries that are inspiring.

Taiwan, for example, has done an impressive job of countering Chinese disinformation campaigns through a bottom-up approach. Rather than relying on top-down censorship, it has encouraged crowdsourced fact-checking and civic participation. I think that's a very inspiring model.

I also think we can learn something from recent political developments in Hungary.

Even though Viktor Orbán has spent many years building an entrenched illiberal state and exercising extensive control over traditional media, he doesn't control the internet.

Independent Hungarian media outlets were still able to break important stories that eventually contributed to the resignation of both the President and the Minister of Justice.

At the same time, you saw the emergence of Péter Magyar, whose political movement gained enormous momentum through social media, largely bypassing Hungary's captured traditional media.

To me, that's a powerful example of free speech helping to empower a democratic movement through the ballot box.

CLAUDIA KOESTLER (9:45)

What would you say is a red flag? At what point does something stop being protected free speech?

JAKOB MCHANGAMA (9:52)

There are many examples.

Threats, for instance. Social media and the internet have made it much easier for people to threaten others.

If you write an article and someone dislikes it, they can often find your email address or your social media accounts and send you threats. That's not protected speech, nor should it be. It's something that should be punished.

Incitement to violence is another obvious example.

Or take fraud. Like many people, I receive scam emails on a regular basis. Fraud is not protected speech either.

So there are a number of well-established categories where speech can legitimately be restricted.

What I'm particularly concerned about protecting is political speech—and preventing governments from discriminating between viewpoints.

The danger is when governments effectively say, "If you hold this political opinion, you enjoy free speech. But if you hold that political opinion, you don't."

I think that's especially dangerous.

CLAUDIA KOESTLER (11:06)

So you would leave those decisions to judges and the courts?

JAKOB MCHANGAMA (11:11)

Ultimately, yes.

Within a principled and robust free speech tradition, it is the courts that interpret those constitutional protections.

But Albert Einstein once said something very wise. He observed that freedom of expression cannot depend on laws alone—it also requires a spirit of tolerance among the general public.

So you can have the strongest free speech laws in the world, but if a critical mass of people no longer believes in the principle of free expression, then that culture of free speech is likely to wither away, and eventually even the laws themselves may be interpreted differently.

CLAUDIA KOESTLER (11:58)

Do you think the decline in belief in democracy, democratic values and free speech are all happening together?

JAKOB MCHANGAMA (12:07)

Absolutely.

If you look at the Varieties of Democracy project—the world's largest dataset measuring democratic indicators—you'll see that much of the democratic progress made over the past thirty years has been reversed as authoritarian regimes have gained ground.

One of the clearest indicators of democratic backsliding is the erosion of free speech.

Authoritarian governments almost always begin by restricting freedom of expression. Conversely, countries that become more democratic tend to expand press freedom and protect open public debate.

That's one of the reasons I believe free speech is the first freedom of democracy.

Without it, many of our other rights and democratic processes simply cannot function.

CLAUDIA KOESTLER (13:05)

You originally come from Denmark.

How would you compare Denmark with the United States, and Denmark with Germany? As you mentioned earlier, Germany's approach has been heavily shaped by its history.

Section 4 (13:05–17:25)

CLAUDIA KOESTLER (13:05)

You originally come from Denmark.

How would you compare Denmark with the United States, and Denmark with Germany? As you mentioned, Germany has this unique history that has shaped its approach.

JAKOB MCHANGAMA (13:16)

Denmark has traditionally occupied something of a middle ground between Germany and the United States.

Our Constitution doesn't provide particularly strong protection for freedom of expression. It mainly protects against prior restraint—that is, censorship before publication.

However, Denmark has also had a strong political tradition of not prohibiting even very extreme forms of expression.

For example, displaying a swastika is not illegal in Denmark. The Nazi Party has never been banned. Communist parties have never been banned. Holocaust denial is not a criminal offence.

At the same time, we do have hate speech laws, but they're much narrower than Germany's.

More recently we've also introduced new restrictions, such as the law prohibiting the desecration of religious texts—including public Qur'an burnings.

So Denmark generally has fewer legal restrictions on free speech than Germany, although it is certainly more restrictive than the United States.

CLAUDIA KOESTLER (14:11)

Do we simply have to accept that democracy contains the seeds of its own destruction? Is that just the price we pay and hope for the best?

JAKOB MCHANGAMA (14:18)

Free speech and democracy are, in many ways, an experiment.

There is no guarantee that they will always produce the best outcomes. There is an inherent risk involved.

But I think democracies can build safeguards that don't rely on censorship or restricting speech.

One of the things that struck me when studying the fall of the Weimar Republic was that, although there were many emergency laws restricting speech, the state was actually quite weak when it came to stopping political violence in the streets.

For me, that's one of the most important lessons.

You can tolerate groups with extreme views. But when they begin organising paramilitary organisations that intimidate people or use violence on the streets, that's when the democratic state must act firmly and enforce the rule of law.

I also think democracies have to rebuild trust.

Many citizens have lost confidence in democratic institutions because they no longer believe those institutions deliver for them.

Finding ways to reconnect with people—to make them feel that they belong within existing democratic institutions—is perhaps the most important challenge democracies face.

If governments fail to do that, the political climate can become increasingly toxic.

CLAUDIA KOESTLER (15:41)

But do people feel democracy isn't delivering because that's actually true—because they have less money in their pockets and fewer opportunities—or because that's the story they're constantly being told?

JAKOB MCHANGAMA (15:59)

That's a very good question.

I think, in many ways, human beings take the good things in life for granted.

If you look objectively at the average citizen in Germany—or here in Munich—they enjoy a remarkably high standard of living compared with most people around the world, and certainly compared with Germans a hundred years ago.

But that isn't necessarily how people experience everyday life.

Once you become accustomed to prosperity and opportunity, those things quickly become normal. You stop noticing them. We all tend to want more.

But I also think this is about identity.

Human beings want a sense of belonging and meaning.

Modern democratic states often place great emphasis on procedures and institutions, but they don't always provide a broader narrative that people can identify with—a story that makes them feel part of something larger than themselves.

The danger, of course, is that authoritarian movements often do provide that sense of identity and belonging.

Democracies have to find ways of fostering community and shared purpose without drifting towards authoritarian models.

That's obviously a much bigger question than free speech alone, but I think it's one of the central challenges facing democracies today.

Section 5 (17:25–23:24)

CLAUDIA KOESTLER (17:25)

What advice would you give a government that feels it is losing its grip on democracy and sees authoritarianism gaining traction?

JAKOB MCHANGAMA (17:36)

Let's take Denmark as an example.

For many years Denmark had a very robust public debate about immigration—one that, in many other countries, would have been regarded as bordering on racism.

But it also meant that these issues weren't simply swept under the carpet.

People who might otherwise have felt excluded from the political process—and perhaps been drawn towards more extreme political movements—were instead able to participate in mainstream political debate.

It also meant that Denmark made policy decisions which I personally believe were necessary, but did so through an open, democratic and transparent process.

That builds trust.

If extremist parties begin attracting more and more voters, but mainstream political parties show no interest in understanding why those voters feel—rightly or wrongly—that they've been let down by political elites, then eventually the only response becomes trying to isolate or silence them.

I don't think that's healthy.

Without compromising democratic principles, governments need to listen to those citizens and find ways of reconnecting with them, rather than allowing them to drift further away.

CLAUDIA KOESTLER

So the key is communication?

JAKOB MCHANGAMA

Yes—and meaningful participation.

Modern technology actually offers some interesting opportunities.

Some countries are experimenting with citizens' assemblies and other forms of participatory democracy that use technology to involve people more directly in public decision-making.

These approaches can help identify areas of common ground and allow citizens to contribute more directly to democratic decisions.

That, in turn, can strengthen trust because people feel they genuinely have a stake in democracy.

Of course, there will always be a small group of people who are deeply committed to authoritarian ideas and probably can't be persuaded otherwise.

But there are many others who simply feel ignored.

They believe political parties are no longer interested in them.

Those are the people who can still be reached—provided governments are willing to engage with them.

CLAUDIA KOESTLER (20:09)

Let's go back to the United States.

You said earlier that President Trump has been constrained by the courts.

Do you see a greater threat to American democracy coming from the President or from the tech companies?

JAKOB MCHANGAMA (20:23)

Definitely from the administration.

I think the political power of the technology companies is often exaggerated.

That doesn't mean they aren't influential—they certainly are—but governments possess powers that private companies simply don't.

A government can mobilise the Department of Justice, the FBI and other state institutions in ways that no private company can.

So I think the greater concern is the current administration's willingness to challenge democratic norms.

That includes the rule of law, attempts to undermine the independence of institutions, pressure on universities, and efforts that raise serious concerns about freedom of expression.

I don't think we've seen anything quite comparable since the Second Red Scare in American history.

CLAUDIA KOESTLER (21:28)

Do you see a turning point in the near future? I'm thinking particularly about the midterm elections.

JAKOB MCHANGAMA (21:34)

That's a good question.

I'm not an expert on American politics, but one thing that has always struck me about living in the United States is the contrast between walking into an American supermarket and walking into a voting booth.

In a supermarket, consumers have an extraordinary amount of choice.

You might have fifty different brands of the same product at different price points.

But when Americans enter a voting booth, they effectively have only two choices.

For many Americans, neither of those choices feels particularly attractive.

They don't feel genuinely represented by either major party.

I think that's a real danger for American democracy.

It creates alienation.

It undermines trust.

It breeds cynicism.

And it leaves politics increasingly in the hands of the most partisan voices within each party, reducing the incentive to seek compromise or appeal to the large number of Americans who don't identify strongly with either political camp.

CLAUDIA KOESTLER (22:53)

What question haven't I asked that you wish I had?

JAKOB MCHANGAMA (22:59)

I think we've covered a great deal.

You've asked very direct questions about free speech in Germany, and I think that's particularly valuable.

The fact that we're able to have this conversation openly is, in itself, evidence that free speech exists in Germany.

CLAUDIA KOESTLER (23:24)

And we're doing our best to defend it.

Jakob, thank you so much for joining me—and for joining all of us here on Over Here, Over There, the podcast across borders.

I hope we'll have the opportunity to continue this conversation in the future.

Thank you very much.