Interviewer: Jillian York

David Kaye is a clinical professor of law at the University of California, Irvine, the co-director of the university’s Fair Elections and Free Speech Center, and the independent board chair of the Global Network Initiative. He also served as the UN Special Rapporteur on Promotion and Protection of the Right to Freedom of Opinion and Expression from 2014-2020. It is in that capacity that I had the good fortune of meeting and working with him; he is someone that I consider both a role model and a friend and I enjoy any chance we have to discuss the global landscape for expression.

York: What does free expression mean to you?

Oh gosh, that is such a big opening question. I guess I’ve thought of freedom of expression in a bunch of different ways. One is as a kind of essential tool for human development. It’s the way that we express who we are. It’s the way that we learn. It’s our access to information, but it’s also what we share with others. And that’s a part of being human. I mean, to me, expression is that one quality, you know, animals also communicate with one another, but they don’t communicate in a way that humans do. That is both communicating thoughts and ideas, but also developing one’s own person and personality. So one part of it is just about being human. And the other part, for me, that has made me so committed to freedom of expression is the part that’s related to democratic life. We can’t have good government, we can’t have the essential kinds of communication that leads to better ideas and so forth, if we’re not able to communicate. When we’re censored, we’re denying ourselves the ability to solve problems. So, to me, freedom of expression means both the personal, but also the community and the democratic. 

York: I love that. Well, okay, then I’m really curious to hear about an early experience that you had that shaped these views. 

I actually, as a kid, my parents were somewhat observant Jewish. Not totally, we were what I considered suburban observant. Meaning we’d go to the synagogue and then I’d go play baseball or we’d go to the mall. It wasn’t any kind of deeply religious thing, but the community was really important to my family. And back in the 1970s and early 80s when I was growing up, the Jewish community, at least where I lived, kind of rotated around, not Israel—which it is today, which is problematic in all sorts of ways—but it tended to focus around the plight of Jews in the Soviet Union. And that’s where we were kind of engaged. And so my earliest engagement with community and whatever religious background my parents were bringing to the table was human rights focused. It was community, it was our community in that sense, but it was human rights focused. 

And the thing I took away as a kid about Jews in the Soviet Union was that they were denied two basic things. One, total freedom of expression. Which I didn’t put in those terms when I was seven or eight years old, but it was about access to information, kind of the closed nature of a regime that didn’t allow individuals either to develop as themselves and to develop their religious beliefs, or to communicate with others about them. The other part was freedom of movement. You know most dissidents and Jews and other minorities were totally denied freedom of movement. And so I guess my earliest experience with freedom of expression and my earliest commitment was pretty deeply personal. Not that I was suffering anything from that. Because the nature of our community was organized around not just our immediate community in our little Suburb of Los Angeles, but the broader community. You know, I thought in those terms. The other part, obviously, as I was growing up, was Holocaust education was a big part of the Jewish community, and the phrase, “never again” actually meant something and it connected us in our community to what was happening to others around the world. [Editor's note: This interview took place in September 2023]

So, I was blessed in the sense that I lived in this kind of isolated place—I mean, not totally isolated—

York: I’m also from suburbia, I get it. 

So you feel isolated in those places. But somehow, even though we were in this kind of tribal community, it was outward looking and I just am sure that had a big part in my thinking about human rights and how we think about others and how we think about our own role in improving either our own existence and our own well-being and that of others. 

York: I love that background and that makes a lot of sense. You’ve then gone on to do all these things, including being the UN Special Rapporteur on Opinion and Expression. I want to note that it seems like you’ve always had an international outlook, which I think is kind of rare in the US, where we can often be quite insular. 

Yeah, it bugs me to no end. And I actually think it’s getting worse. The first part of it is, and I say this and it sounds glib, but Americans don’t speak human rights. We don’t even speak this language that allows us to communicate globally. And so, I just came to Lund, I’m at the Raoul Wallenberg Institute of Human Rights at Lund University. This is basically my second day here, and it’s amazing to me how people speak this common language. This language that you speak, that I speak, that across Europe and around the world, people speak. It’s like this common set of norms, and then this language that comes out of human rights. And it allows us to kind of level set and discuss issues and have a common framework for them. And we don’t have that in the United States. I mean Americans, whether they’re progressive or liberal or what, we tend to discuss all of our issues in the context of “constitutional rights.” And it’s a language that doesn’t really translate well globally. So I think that is a bit of a barrier for Americans. I mean I’d love to see that change. 

But the other part of it in terms of the global that I see every day is there’s kind of an ebbing and flowing of academic interest in the world. Less about what students are interested in, but what faculties are interested in. There is an overall trend, I think, of focusing inward in ways that are just not useful. It’s true. To me it’s amazing because the biggest issue, in some ways, globally is climate change. And so it requires global solutions and global vocabularies. And we move away from that. I don’t get it. I don’t get why we’re like that. 

York: I don’t either!

It’s very frustrating.

York: It is. It absolutely is. I’m going to bring it back globally, though, I’m going to bring it back to your former role as the Special Rapporteur. I think, from my perspective, as someone who got to work with you and see you in that role, it was great to see you bringing digital issues into it. And since, coming from an EFF perspective here I want to focus a little bit on that, because you were coming from a human rights background – and I know of course you have some digital background as well. But what did you expect going into that role? And how did your early work in that role change your views on the platform economy and how internet speech should be viewed and possibly regulated? 

There’s so much richness in that question. And it’s true, we could spend all day just going off that question. I started as Special Rapporteur mainly with a human rights background. I had, I guess I would say dabbled in freedom of expression issues, I would say it had been a concern of mine. But I hadn’t written much in that space. And I hadn’t written a whole lot, I’d done a lot or work in International Criminal Justice and focused on some of the early use of technology in international criminal law. But hadn’t done a whole lot of that intersection of freedom of expression and the digital economy. One of the things that I was most excited about when I was appointed to the position was how it opened doors to allow me access to what people were thinking around the world. And I was really mindful of the fact that it was a bit weird for an American to be appointed Special Rapporteur for freedom of expression because so many people around the world see the First Amendment [to the U.S. Constitution] as somehow exceptional. Like the American First Amendment is somehow different. I think that’s overstated, but I was still mindful that there was that view. That the First Amendment was somehow different from Article 19 of the Universal Declaration on Human Rights or the International Covenant on Civil and Political Rights in some fundamental ways. 

So what I wanted to do early on was reach out and just find out from—mainly from civil society—like what are the concerns? What are people focused on when it comes to freedom of expression and the digital age? And, actually, within the first six months I did a few convenings, like consultations with civil society. And we did one, I remember in December of 2014 in London, and the recurrent theme—and, remember, this is like a year and a half after the Snowden declarations—so a recurrent theme was the intersection of privacy and freedom of expression. And, to me, there’s something about the digital age that really brings that intersection forward. Because so much of what we do is so easily surveilled, whether it’s by the private sector or by governments, that that naturally has an impact on—well, first, how we think—but also how we think about what we’re able to express, who’s hearing us express those things, where we are engaging in what we typically would have thought of as private expression. The kind of expression where you’re with your friends and you’re trying to work through an idea. Well, who’s listening in while you’re doing that? Who’s watching while you’re browsing? Which is a form of freedom of expression, it’s access to information. Who’s surveilling you? 

And so, very early, I just saw that that kind of intersection was going to be the focus of my mandate, probably more than anything else. And my first report was on encryption as a human right, it was encryption and anonymity. And I think that in some ways shaped, like I haven’t looked back at that report in a while, but if I looked back at that report I’d imagine most of the themes that were most interesting to me over those six years of the mandate were probably present in that first report. 

But you asked a bigger question about the digital economy, right? 

York: Yeah, the initial question was around what do you think makes the digital economy unique, specifically the platform economy, and has it changed any of your views on the regulation of online speech? 

It’s hard to have been watching this space over the last ten years, and not be influenced by the kind of cesspool that social media became. And I think there were moments—I’m curious about your thoughts on this, too, because you’ve been engaged in this from such an early time and seen the whole development of social media as a kind of centralizing force for internet communication. But I feel that there was a kind of dogmatism in the way that I approached these issues early on around freedom of expression. That probably evolved as I saw hate, harassment, disinformation and all that kind of coursing through the veins of social media. And, ultimately, I don’t think my views changed, in terms of either what platforms should do or what regulation should look like. I mean, I’m still very wary of regulation, even though I think there’s a role for regulation. But it’s hard not to have been influenced by the nature of harms people have seen. 

I guess the difference might be that because I was engaging with people like you, and people around the world who were involved in, whether it was communities in repressive societies because the government was repressive, or socially there was a lot of repression, I tended to look at the issues through the lens of those who are most disadvantaged. That’s something that I’m sure that I would not have gained access to if I were basically just teaching in Irvine, California and not having access to those communities. 

The thing that I learned that I think was so interesting, at least for me, was how those who you might expect to be most in favor of the state intervening to protect those who are at risk—those communities, and the individuals who represent those communities were often the ones who were the most often saying, “No. Don’t force censorship as a response to these harms. Give us autonomy. Give us the tools to address those harms on our own, using our own access to technology, our own ability to express ourselves and fight back, rather than imposing it from some state orientation.” And that definitely influenced the way I see these things. That goes back to your question about the international. And it’s not just about international law, of course. I think the American conversation is often divorced from that sense of how people who are historically underrepresented or historically harmed, how folks in those communities see things differently than, you know, Moms for Liberty or those pushing for the Kids Online Safety Act (KOSA). You know, it’s all about protection, protection, protection – but those who have the voice to say, “here’s how we want to be protected,” don’t want those approaches. And I think that that’s somehow a barrier between the global—and maybe also the grassroots—in the United States and decision-makers and the state. 

York: That’s such a great answer. And having been in that space for such a long time I think, like so many people, I was really excited about these platforms in the beginning. And seeing, actually I gave a talk last week where I set it up by talking about the importance of the internet and social media through the lens of the Arab Spring, which is, kind of, I don’t want to say it was my intro, but even just the years running up to that, were my intro to the importance of these platforms for free expression for democracy, activism, and all of that. So I think that gave me this certain idealism and then to see things crash so quickly in that era of the Islamic State, Gamergate, and all those things that happened around the same time. It’s definitely shifted my views from being… I don’t want to say an absolutist… but a strong maximalist to trying to really see the variety of perspectives and the variety of harms that can come from absolute free expression on these platforms. And yet, I still worry that a lot of the people who have the loudest voices right now—and I don’t mean the horrible people who are coming from the side of hate, but the people who have the loudest voices within this debate around expression on platforms—I think a lot of them are not looking at the most marginalized voices. They might be marginalized themselves, but they’re often marginalized within a democratic context. And I think it’s hard for people in the US to see outside of that. 

I think that’s absolutely right. And I think one of the things that people forget is that human rights protections are designed to protect those who are most at risk. Even thinking about Fourth Amendment protections in the United States or due process protections under human rights law, those are designed to ensure a kind of rule of law that protects people who aren’t necessarily popular. Or are seen, putting aside popularity, are not the communities that are kind of given the biggest profile in the public or in the media or whatnot. And I think that when you get something that’s—like KOSA for example—it’s driven by people or ideas that are majoritarian. And human rights is sort of, in principle, about protecting minorities. I think that when you think of it in those ways it means that in human rights conversations we need to be centering and raising the profile of voices that aren’t necessarily going to be heard otherwise. Because those are the people who are most harmed by regulation, by choices that are made at the state level. 

York: Is there anything else you want to touch on? 

Well, you were asking one question before that I didn’t exactly answer that was kind of touching on, maybe, the regulatory moment that we’re in and about platforms. And there I would just say that we’re in this very pivotal moment. Where you have Europe adopting a whole lot of rules on the one hand. You have platforms seemingly stepping away from—and certainly this the case of Twitter, but even others—stepping away from some of their earlier commitments to promoting freedom of expression and pushing back against government demands and so forth. I just think that this is a very important moment in the next couple of years as we see how regulation develops. I guess I’m more concerned than I was a couple of years ago. I think we had a little exchange, but I saw on BlueSky—which I’m still trying to figure out—but you said something that resonated with me, which is that a couple of years ago it was common to think, “Europe is the future.” And now, it’s not clear that they really are. Either they’re not getting it right in Brussels or when you hear things coming out of France or other places, you think, God, nothing’s really changed, it’s just getting worse. The demand for censorship or for access to user data or whatnot is getting worse, not better. So I just think it’s a really pivotal and perhaps troubling moment about where we’re headed in terms of regulation and the digital economy. 

York: I agree, and I worry that if Europe fails on this, who do we have? It’s not the US. It’s certainly not most of Asia. Is it Latin America? That might be a rhetorical question. Okay, so my final and favorite question to ask. Alive or dead, who is your free speech hero?

Free speech hero—that is really a great question. You know who I have been thinking a lot about recently? Well, we’re sort of in this Oppenheimer moment, you know, Barbie and Oppenheimer. I was thinking a lot about, there’s this sense in Oppenheimer, both in the book American Prometheus and the movie there’s this sense that Oppenheimer, who’s this scientist, was kind of burned by his freedom of expression. And Oppenheimer is super interesting from the perspective of him, Robert Oppenheimer’s own opposition to government secrecy. Actually the book is much better on this, although the movie gets to this, too, about how much he was fighting against government secrecy and open access to information. But this led me to think about… and I’m getting to your question eventually, alive or dead… and this sort of goes back to the beginning of the conversation. So I was interested in the fact that nuclear scientists at the dawn of the nuclear age tended to be kind of activists definitely on the left. Super interesting. And the one person who was harmed more than anybody else within that nuclear scientist community, was Andrei Sakharov. So Sakharov was basically the father of the Soviet hydrogen bomb. So, on the one hand, that’s kind of gross. That’s a terrible legacy to have, to have helped create basically civilization-ending weapons. But then after he did that he became an activist. He became really outspoken about the hell of Soviet totalitarianism. And for his speaking out, he was sent to Siberia. He was basically a dissident for decades of his life until he passed away. To me that was heroic. I don’t know if he’s the most important free speech avatar, but the fact that he, and that people still today like him, speak out in situations that are deeply, deeply personally dangerous, to me is remarkable. I mean, I can post something about the awfulness of Saudi money infecting so much of our politics and sport and culture right now. I’ll be fine. I probably wouldn’t want to go to Saudi Arabia, but I’ll be fine. 

Then you think about all the people we know, whether they’re in Egypt or Saudi or anywhere around the world, where minor engagements get them thrown in a dark hole of Egyptian or Saudi prisons. I’m thinking of someone like Gamal Eid in Egypt, who—and this is heroic—his basic stand in favor of freedom of expression was taking money through a [Roland Berger Foundation Human Dignity Award] prize and devoting all his money to building libraries in underprivileged neighborhoods in Cairo. To me that’s amazing. And also something that could easily—and it’s put him in travel ban territory for years—could easily get somebody in trouble. So I start with Sakharov and end with Gamal, but that kind of approach, that kind of commitment to freedom of expression, to me, is the most empowering and inspirational. 

York: What a perfect answer. I agree absolutely and fundamentally, and I thank you for this wonderful interview.