Paul Wragg, Professor of Media Law at the University of Leeds, is well known for his work on press freedom and regulation, and privacy law. His earlier work, A Free and Regulated Press (Hart Publishing, 2020), offered a philosophically grounded examination on the role of the press in society, and defended a scheme of statutory regulation for the UK press. His latest book shares the same passion for legal philosophy, which Wragg argues, is ‘a metric by which to measure the health of the free speech principle in practice’.Footnote ¹ He bemoans the superficial treatment of the philosophical justifications for freedom of expression in academia and practice. Theory, he argues, is a critical tool that can guide policymaking and jurisprudence. It can help identify flaws in legal reasoning, and even judge ‘if a jurisdiction “has it wrong”’.Footnote ² Wragg endeavours to reinstate theory to its rightful place, and, in particular, to ‘rehabilitate the Millian account of individuality’.Footnote ³ Both Mill’s ideas of truth and truth discovery and Holmes’ concept of the ‘marketplace of ideas’ have received a fair amount of criticism from American theorists.Footnote ⁴ Wragg argues that Mill’s conception of freedom is governed by irrationality, and that ‘the authentic basis of free speech is individualistic and not communal’.Footnote ⁵ At first sight, this argument in favour of a liberal conception of freedom of expression might be considered a departure from Wragg’s previous book, which pleaded for a more stringent regulation of the press.Footnote ⁶ In fact, this book is very much a continuation of Wragg’s earlier work. It transfers the exploration of the tension between freedom and regulation from the domain of the press to that of freedom of expression. Its arguments align neatly with those previously advanced. If the press is under no duty to enhance democratic participation, as argued by Wragg in A Free and Regulated Press, then this should apply a fortiori to everyone’s right to free speech and to the platforms which enable online communication. Following this argument through leads Wragg to maintain that there is no justification for the regulation of speech other than harm, understood in a narrow sense as harm to individual interests rather than collective ones. Consequently, regulation for plurality or for quality of information is viewed as indefensible.

This conclusion also captures the overarching ambition of the book, namely ‘to demonstrate the fallacy, in orthodox theory, that constructs the authentic free speech principle according to the societal benefits to be derived’.Footnote ⁷ The groundwork for this endeavour is laid in Part II of the book, which explores the sources of free speech values and the method by which the substantive scope of the free speech guarantee is circumscribed. Having established methodological flaws in both respects, it launches Part III with a comparison between Hegel’s and Mill’s notions of freedom, the former hailing the rational as the true object of autonomous thought, with the latter regarding it as incompatible with the notion of autonomy. The clash between these two conceptions of freedom forces us to choose, so the argument goes, between individuality and communitarianism. Wragg argues that these values are mutually exclusive, and that ‘authentic free speech theory is to be understood either in the language of individuality or the language of community – but not both’.Footnote ⁸ Having framed his account of freedom of expression in terms of this stark choice between individuality and collectivism, Wragg comes down squarely in favour of the former, not least because it constitutes, in his view, the ‘base unit of our constitutional design’ in a liberal democracy.Footnote ⁹ He thus aligns himself with the personal autonomy theory of free speech, which views the preservation of personal autonomy as the foremost reason of First Amendment protection.Footnote ¹⁰

The remainder of Part III is devoted to invalidating both epistemic advance – the discovery and dissemination of knowledge – and democratic participation as justifications for the protection of freedom of expression, before reframing the discussion about free speech in line with Mill’s individualistic vision. The final part of the book, Part IV, turns to a particular aspect of Mill’s philosophy on liberty, namely the heavily criticised harm principle. It seeks to rehabilitate it by applying it to three horizontal scenarios: digital speech; civil law disputes involving public interest expression, so called SLAPPs (Strategic Lawsuits Against Public Participation); and the employment context. Wragg finds horizontality least problematic in an employment context, is sceptical of SLAPPs, and is outright critical of the horizontal application of fundamental rights vis-à-vis digital platforms. He argues that the recognition of free speech rights in an employment setting makes sense in view of the exercise of coercion in a state-like manner by employers. In other parts of the book, we find ostensibly personal vivid illustrations of such coercion in the higher education context.Footnote ¹¹ Wragg is more reluctant to indiscriminately accept free speech claims in the context of SLAPPs. He rightly emphasises that anti-SLAPP laws need to clearly spell out the mischief that they aim to eradicate.Footnote ¹² He argues that the anti-SLAPP procedural tool, and the concomitant legal designation of ‘public interest’, should only be reserved for ‘vertically aligned speech’, which he narrows down to speech ‘by which the citizen pleads for state intervention (as with petitions) or else contributes materially to the justice process (as with court testimony)’.Footnote ¹³ He controversially doubts that public interest journalism should benefit of the SLAPP protection, given that it may have no link to state action as such. This narrow delineation of the anti-SLAPP domain certainly has the merit of greater definitional precision. However, it begs the question whether journalism monitoring state power would also disqualify despite the alarming use of lawsuits as a strategic weapon to silence the media in the US. As far as common law defences to defamation are concerned, Wragg argues that some of these defences, such as qualified and absolute privilege, do not necessarily implicate free speech rights in a horizontal setting, but should be viewed through the lens of autonomy. This applied less so in the case of other defences, such as the section 4 public interest defence, which provides free speech protections in a horizontal context. Again, in Wragg’s view, a line needs to be drawn between topics of communication that concern people from those concerning issues which implicate the structural dynamics of power such as the performance of a public official. In this chapter, the notions of ‘horizontality’ and ‘verticality’ are hence employed in a broader, more metaphorical sense to connote the subject matter of the speech in question rather than just the actors involved in a certain claim.

The horizontal application of fundamental rights is more controversial in the context of the moderation of online speech by digital platforms. Interestingly, Wragg explains the rift between the European and the US approach in terms of the tension between the Hegelian versus the Millian conception of free speech, the European position seeking to reconcile individual and collective interests, the US model valuing individuality over community.Footnote ¹⁴ In his view, it is important to preserve the autonomous freedom of online platforms, both as private businesses and, possibly, as media-like entities.Footnote ¹⁵ He does not consider that the enormous power amassed by the tech giants is a good enough reason to subject them to a duty to respect human rights, and in particular, to require them to take remedial action such as the continuation or restoration of services.Footnote ¹⁶ Moreover, he regards positive obligations with a view to furthering democratic discourse, say by imposing obligations of algorithmic accountability, as a form of ‘social agenda-setting activity’ that interferes with the property rights of digital entrepreneurs.Footnote ¹⁷ Controversially, he is sceptical of the existence of market failure in the online news ecosystem, or argues that any information inadequacies should be remedied by data protection and competition laws, rather than by intervening in content moderation practices.Footnote ¹⁸

The question of platform regulation by human rights has indeed been mired in controversy. In Germany, the extent to which platforms need to take fundamental rights into account in the formulation and application of their terms of service has divided courts and commentators alike.Footnote ¹⁹ While a direct horizontal effect of fundamental rights is out of the question, the German Constitutional Court (BVerfG) has long recognised their indirect-third-party-effect on relations between private parties.Footnote ²⁰ Against the backdrop of this constitutional case law, the Federal Court of Justice (Bundesgerichtshof, BGH) adopted two seminal judgments, clarifying the effect of fundamental rights on the contractual relation between platforms and users.Footnote ²¹ The relevance of these BGH judgments, and of the debate about horizontality, has been cast into doubt by the adoption of the EU’s Digital Services Act (DSA), which explicitly requires online platforms to have due regard to the fundamental rights of the recipients of their service, such as freedom of expression and media freedom.Footnote ²² Given that platforms’ moderation decisions are now embedded within the DSA regulatory framework, any ensuing restrictions of fundamental sights are, at least in part, the upshot of these regulatory requirements, and are arguably ‘vertical’ rather than ‘horizontal’.Footnote ²³

Horizontality or not, the transatlantic feud over the EU regulation of digital platforms, branded by the US as ‘censorship’, is alive. Wragg’s book is more aligned with the US position, and is especially sceptical of the regulation of disinformation. He asks if ‘voter misperception (or gullibility) is not, of itself, an exercise in or manifestation of autonomy; and, secondly, whether interferences with such speech can be made without compromising autonomy’.Footnote ²⁴ These are undoubtedly pertinent questions, which exemplify the problematic nature of the criminalisation of falsehoods. However, this is not tantamount to saying that the state should have no role whatsoever in facilitating a plural information environment in which the audience receives reliable information. Wragg’s distrust of any form of positive speech regulation might be informed by his fascination with the press. Positive regulation for the public interest with the aim of safeguarding a range of values is far more entrenched in the case of broadcasting, and is epitomised by public service media. The debate between individuality and collectivism, which is at the heart of this book, is also a debate between the press (market liberal) and broadcast (social liberal) models of media regulation. The jury is still out on the regulation of online speech.Footnote ²⁵ However, a stark choice between individual and collective interests does not need to be made, and would arguably be irreconcilable with the many limits placed on speech in accordance with international human rights law.

Overall, this powerful book offers important insights into the relevance of free speech theory for tackling a plethora of current, very thorny issues. The philosophical analysis is not for the faint-hearted, but it awards the committed reader with rich rewards. It is an exciting book that shows admirable commitment to a theoretical idea, which it follows and develops consistently throughout. It shows that it is high time to rethink free speech, starting with the fundamentals, and that the decisions we take today will reverberate for a long time to come.