In February 2025, JD Vance stood before an eminent crowd of European leaders in Munich and accused them of failing democracy and turning their backs on “Western” values. Claiming the mantle of free speech warrior, he dismissed disinformation as a “Soviet-era” word and presented far-right harassment of migrants as part of a legitimate public debate. “If American democracy can survive ten years of Greta Thunberg’s scolding,” he admonished, “you guys can survive a few months of Elon Musk.” It was an act of hypocrisy, of course, because even if Europe has room for improvement on free speech, the Trump administration itself was just beginning an unprecedented crackdown on domestic and global civil society. The claim to be free speech defenders is a fundamentally hollow one, a distraction, political signaling and ground laying. Designed and honed over many years, Trump, Vance, Musk and their allies in Congress, Silicon Valley, parts of the media, and Europe—especially Alternative for Germany, France’s National Rally, Reform UK, and Hungary’s recently ousted Fidesz—have self-interestedly defined the terms of free speech and used their narrative to try to protect themselves against claims of censorship, even after, for instance, the fiasco of Federal Communications Commission Chair Brendan Carr’s attempt to silence Jimmy Kimmel.
There is more to the populist free speech claim than hypocrisy. We should identify the narrative themes that thread through their rhetoric. In their absolutist world, speakers reign supreme, efforts against hate, disinformation and harassment constitute anti-democratic interference, content moderation is tyranny, and regulation of any sort means censorship. This framing, a key feature in the politics of populist parties globally, exploits weak civic and cultural understanding of the purposes of freedom of expression, seeking to undermine an information environment that should, if well designed and supported, promote knowledge and debate essential to democratic society. The framing is also deeply consequential, a foundational argument behind a range of destructive policies.
It is also wrong. Permit me a moment to advocate the human rights law framing of freedom of expression, the global free speech vernacular, rather than the domestic American one. The language of the First Amendment is, compared to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and about 170 other states, both categorical (Congress shall make no law) and linguistically narrow (abridging freedom of speech, or of the press).
By contrast, Article 19 provides that freedom of expression protects everyone’s right to “seek, receive and impart information and ideas of all kinds, regardless of frontiers,” through any media of one’s choice. Seek and receive, not just impart. It protects speakers and also audiences and listeners, the professional researcher and the recreational rabbit hole finder; it promotes the public’s rights to information, accountability, independent investigative journalism, education, and civic space for debate and culture. It demands that public authorities only adopt restrictions that meet strict tests of legality, necessity and proportionality, and legitimacy. Its precursor is the Universal Declaration of Human Rights, with its similarly worded Article 19, and its framework may be found in European and inter-American regional treaties and jurisprudence and in domestic constitutional law worldwide. The Article 19 framework is also the legal basis of sound regulation designed to protect and promote vulnerable communities, the right to vote, and democratic institutions. As an engine for innovation in business, science, technology and governance, a multidimensional freedom of expression is what separates the dynamism of democracies from the retrograde reality of repressive regimes.
As an alternative to the First Amendment, this framing of free speech rarely gets aired in political and popular discourse; it certainly isn’t central to any political agenda in the United States. Instead, the public gets a steady dose of one-sided arguments about free-speech-for-speakers from the very same politicians and officials who are clamping down on public debate and pluralistic media and consolidating the power of digital-age companies entwined with the state.
All of this argues for a process of reclamation of “free speech” for the public’s interest, not merely for the interests of companies, governments, or partisans. Every policy supporting an information environment that works for democracy—Big Tech transparency, guardrails on AI, vibrant public and independent media, active and unimpeded civil society organizations, efforts to address disinformation and hate, and so on—depends on the public, lawmakers, and the courts embracing not only the language of Article 19 but its underlying meaning and value. It’s a battle we are losing right now, with grave consequences for the future of democracy.
Reclamation should be a political and civic project. It requires that democratically minded leaders in government, culture, business and civil society make the case for a vision of “free speech” that both opposes censorship of any kind while also advocating other free speech values that benefit the public: pluralist media, public broadcasting, individual access to information (understanding access in all its meanings), tech transparency and competition, AI guardrails, and much else. Obviously, this will have to translate into legislative agendas as well, supported by a strategy of showing why investments in a healthy information ecosystem benefit individuals and their communities. But I believe we won’t make any progress if we fail to persuade the public that democracy depends on a broader way of thinking about free speech than currently on offer today.
David Kaye is a clinical professor of law at the UC Irvine School of Law and the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression.