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The History of Freedom of Speech

The History of Freedom of Speech

Wednesday, 13th January, 2014

There has been a lot of discussion about freedom of expression since the killing of the eight journalists at the offices of Charlie Hebdo, the French satirical weekly newspaper, that had published a number of controversial Muhammad cartoons. It has been suggested that there is a long tradition of freedom of speech in the UK and that we need to defend this ancient right in response to this terrorist outrage. Although journalists have been keen to point this out it seems their editors are unwilling to publish any of the offending cartoons. It has also emerged that official guidelines previously published online said that the Prophet revered by Muslims “must not be represented in any shape or form” in BBC output.

Freedom of expression is something that has taken a long time to establish in this country. Dominant religious, political and cultural institutions have always used their power to protect themselves from criticism. An interesting case in our history concerns Anne Askew who was burnt at the stake on 16th July 1546. Anne had taken on every powerful institution that existed in Tudor England.

Anne was the daughter of Sir William Askew (1489–1541) a large landowner and the former MP for Grimsby. When she was fifteen her family forced her to marry Thomas Kyme. Anne rebelled against her husband by refusing to adopt his surname. The couple also argued about religion. Anne was a supporter of Martin Luther, while her husband was a Roman Catholic. From her reading of the Bible she believed that she had the right to divorce her husband. For example, she quoted St Paul: "If a faithful woman have an unbelieving husband, which will not tarry with her she may leave him"?

In 1544 Askew decided to travel to London and request a divorce from Henry VIII. This was rejected and in March 1546 she was arrested on suspicion of heresy. She was questioned about a book she was carrying that had been written by John Frith, a Protestant priest who had been burnt for heresy in 1533, for claiming that neither purgatory nor transubstantiation could be proven by Holy Scriptures. She was interviewed by Edmund Bonner, the Bishop of London who had obtained the nickname of "Bloody Bonner" because of his ruthless persecution of heretics.

After a great deal of debate Anne Askew was persuaded to sign a confession which amounted to an only slightly qualified statement of orthodox belief. With the help of her friend, Edward Hall, the Under-Sheriff of London, she was released after twelve days in prison. She was sent back to her husband. However, when she arrived back to Lincolnshire she went to live with her brother, Sir Francis Askew.

In February 1546 conservatives in the Church of England, led by Stephen Gardiner, bishop of Winchester, began plotting to destroy the radical Protestants. He gained the support of Henry VIII. As Alison Weir has pointed out: "Henry himself had never approved of Lutheranism. In spite of all he had done to reform the church of England, he was still Catholic in his ways and determined for the present to keep England that way. Protestant heresies would not be tolerated, and he would make that very clear to his subjects." In May 1546 Henry gave permission for twenty-three people suspected of heresy to be arrested. This included Anne Askew.

Gardiner selected Askew because he believed she was associated with Henry's sixth wife, Catherine Parr. Catherine also criticised legislation that had been passed in May 1543 that had declared that the "lower sort" did not benefit from studying the Bible in English. The Act for the Advancement of the True Religion stated that "no women nor artificers, journeymen, serving men of the degree of yeomen or under husbandmen nor labourers" could in future read the Bible "privately or openly". Later, a clause was added that did allow any noble or gentlewoman to read the Bible, this activity must take place "to themselves alone and not to others". Catherine ignored this "by holding study among her ladies for the scriptures and listening to sermons of an evangelical nature".

Gardiner believed the Queen was deliberately undermining the stability of the state. Gardiner tried his charm on Askew, begging her to believe he was her friend, concerned only with her soul's health, she retorted that that was just the attitude adopted by Judas "when he unfriendly betrayed Christ". On 28th June she flatly rejected the existence of any priestly miracle in the Eucharist. "As for that ye call your God, it is a piece of bread. For a more proof thereof... let it but lie in the box three months and it will be mouldy."

Gardiner instructed Sir Anthony Kingston, the Constable of the Tower of London, to torture Askew in an attempt to force her to name Catherine Parr and other leading Protestants as heretics. Kingston complained about having to torture a woman (it was in fact illegal to torture a woman at the time) and the Lord Chancellor Thomas Wriothesley and his assistant, Richard Rich took over operating the rack. Despite suffering a long period on the rack, Askew refused to name those who shared her religious views. According to Askew: "Then they did put me on the rack, because I confessed no ladies or gentlemen, to be of my opinion... the Lord Chancellor and Master Rich took pains to rack me with their own hands, till I was nearly dead. I fainted... and then they recovered me again. After that I sat two long hours arguing with the Lord Chancellor, upon the bare floor... With many flattering words, he tried to persuade me to leave my opinion... I said that I would rather die than break my faith."

Askew was removed to a private house to recover and once more offered the opportunity to recant. When she refused she was taken to Newgate Prison to await her execution. On 16th July 1546, Agnew "still horribly crippled by her tortures" was carried to execution in Smithfield in a chair as she could not walk and every movement caused her severe pain. It was reported that she was taken to the stake which had a small seat attached to it, on which she sat astride. Chains were used to bind her body firmly to the stake at the ankles, knees, waist, chest and neck. Askew's executioner helped her die quickly by hanging a bag of gunpowder around her neck.

Bishop Stephen Gardiner had a meeting with Henry VIII after the execution of Anne Askew and raised concerns about his wife's religious beliefs. Henry, who was in great pain with his ulcerated leg and at first he was not interested in Gardiner's complaints. However, eventually Gardiner got Henry's agreement to arrest Catherine Parr and her three leading ladies-in-waiting, "Herbert, Lane and Tyrwhit" who had been involved in reading and discussing the Bible.

Henry then went to see Catherine to discuss the subject of religion. Probably, aware what was happening, she replied that "in this, and all other cases, to your Majesty's wisdom, as my only anchor, Supreme Head and Governor here in earth, next under God". He reminded her that in the past she had discussed these matters. "Catherine had an answer for that too. She had disputed with Henry in religion, she said, principally to divert his mind from the pain of his leg but also to profit from her husband's own excellent learning as displayed in his replies." Henry replied: "Is it even so, sweetheart? And tended your arguments to no worse end? Then perfect friends we are now again, as ever at any time heretofore." Gilbert Burnett has argued that Henry put up with Catherine's radical views on religion because of the good care she took of him as his nurse. The next day Chancellor Thomas Wriothesley arrived with a detachment of soldiers to arrest Catherine. Henry told him he had changed his mind and sent the men away.

During his reign Henry VIII (1509-1547) executed 81 heretics. The Protestant government of Edward VI (1547-1553) took a moderate approach to the subject and only two heretics were burnt at the stake. His sister, Mary (1553-1558) was a much more passionate hunter of heretics and an estimated 280 people were put to death during her five-year reign.

Elizabeth (1558-1603) had a fairly good record of only ordering two heretics to be burnt at the stake. However, she could be very cruel if anyone dared to express views that were critical of her. In 1579 Elizabeth's officials were involved in negotiations about the possible marriage to the Duke of Alençon. Lord Chancellor Christopher Hatton was against the match "but joined with the rest of the council in a sullen acquiescence, offering to support the match if it pleased her." However, there was a great deal of opposition to the proposed marriage. As Elizabeth Jenkins has pointed out: "The English dislike of foreign rule, which had shown itself strongly on the marriage of Mary Tudor, was now indissolubly connected with a fear of Catholic persecution. The idea of a French Catholic husband for the Queen roused the abhorrence which, in the Puritans, reached almost to frenzy."

John Stubbs was totally opposed to the marriage and wrote a pamphlet, The Discovery of a Gaping Gulf, criticizing the proposed marriage. It accused certain evil "flatters" and "politics" of espousing the interests of the French court "where Machiavelli is their new testament and atheism their religion". He described the proposed union as a "contrary coupling" and an "immoral union" like that of a cleanly ox with an uncleanly ass". Stubbs accused the Alençon family of suffering from sexually transmitted diseases and that Elizabeth should consult her doctors who would tell her she was exposing herself to a frightful death. Stubbs also argued that, at forty-six, Elizabeth may not have children or may be endangered in childbirth.

On 27th September 1579 a royal proclamation was issued prohibiting the circulation of the book. On 13th October Stubbs, Hugh Singleton (the printer), and William Page (who had been involved in the distribution of the pamphlet) were arrested. Elizabeth wanted to be immediately executed by royal prerogative but eventually agreed to their trial for felony. The jury refused to convict, and they were then charged with conspiring to excite sedition. The use of this statute was criticized by Judge Robert Monson. He was imprisoned and removed from the bench when he refused to retract.

Stubbs, Singleton and Page were all found guilty of sedition and were sentenced to have their right hands cut off and to be imprisoned, though it appears that Singleton was pardoned because of his age: he was about eighty. The sentence was carried out at the market place in Westminster on 3rd November 1579, with surgeons present to prevent them bleeding to death. Stubbs made a speech on the scaffold where he asserted his loyalty and asked the crowd to pray that God would give him strength to endure the punishment.

William Camden points out in The History of Queen Elizabeth (1617): "Stubbs and Page had their right hands cut off with a cleaver, driven through the wrist by the force of a mallet, upon a scaffold in the market-place at Westminster... I remember that Stubbs, after his right hand was cut off, took off his hat with his left, and said with a loud voice, 'God Save the Queen'; the crowd standing about was deeply silent: either out of horror at this new punishment; or else out of sadness."

An eyewitness claims it took three blows before his hand was chopped off. The bleeding was stopped by searing the stump with a hot iron. Stubbs fainted but William Page walked off unaided, and found the strength to shout: "I have left there a true Englishman's hand!" Stubbs and Page were then taken back to the Tower of London. Parliament was due to meet in October, 1579, to discuss her proposed marriage. Elizabeth did not allow this to happen. Instead she called a meeting of her council. After several days of debate the council remained deeply divided, with seven of them against the marriage and five for it. "Elizabeth burst into tears. She had wanted them to arrive at a definite decision in favour of the marriage, but now she was once more lost in uncertainty."

Elizabeth was shocked to discover that the punishment of Stubbs had a negative impact on her popularity. As Anka Muhlstein pointed out: "Thanks to her unerring political instinct, Elizabeth realized at once that she had taken the wrong tack. Her people's respect and affection, which she had never lacked hitherto, were essential to her. The easy-going relationship she enjoyed with her subjects warmed her heart." In January, 1580, Queen Elizabeth admitted to Alençon that public opinion made their marriage impossible.

On 11th April 1612, Edward Wightman became the last heretic to be burnt at the stake when he was put to death in Lichfield. However, people were still in danger of serving long-terms of imprisonment if they made comments that were considered dangerous by religious and political leaders. There was also a strict form of censorship that attempted to stop people from questioning the status quo.

An interesting case concerns the political career of Tom Paine. In 1791 Paine published his most influential work, The Rights of Man. In the book Paine attacked hereditary government and argued for equal political rights. Paine suggested that all men over twenty-one in Britain should be given the vote and this would result in a House of Commons willing to pass laws favourable to the majority. The book also recommended progressive taxation, family allowances, old age pensions, maternity grants and the abolition of the House of Lords.

The British government was outraged by Paine's book and it was immediately banned. Paine was charged with seditious libel but he escaped to France before he could be arrested. Paine announced that he did not wish to make a profit from The Rights of Man and anyone had the right to reprint his book. It was printed in cheap editions so that it could achieve a working class readership. Although the book was banned, during the next two years over 200,000 people in Britain managed to buy a copy.

To escape imprisonment Paine fled to Paris and in 1792 he became a French citizen and was elected to the National Convention. The following year he discovered that even revolutionary governments were not in favour of freedom of speech and when he opposed the execution of Louis XVI he was arrested and kept in prison under the threat of execution from 28th December 1793 and 4th November 1794.

Paine's book did help to stir up debate on the idea of freedom of speech. Thomas Spence, a schoolmaster from Newcastle, moved to London and attempted to make a living my selling Paine's Rights of Man on street corners. He was arrested but soon after he was released from prison he opened a shop in Chancery Lane where he sold radical books and pamphlets. In 1793 he started a periodical, Pigs' Meat. He said in the first edition: "Awake! Arise! Arm yourselves with truth, justice, reason. Lay siege to corruption. Claim as your inalienable right, universal suffrage and annual parliaments. And whenever you have the gratification to choose a representative, let him be from among the lower orders of men, and he will know how to sympathize with you."

In May 1794 Spence was arrested and imprisoned and because Habeas Corpus had been suspended, the authorities were able to hold him without trial until December 1794. He was eventually released but it was not long before he was back behind bars for selling what the government described as "seditious publications".

One way the government attempted to silence radical newspapers was by taxation. These taxes were first imposed on British newspapers in 1712. The tax was gradually increased until in 1815 it had reached 4d. a copy. As few people could afford to pay 6d. or 7d. for a newspaper, the tax restricted the circulation of most of these journals to people with fairly high incomes.

Richard Carlile was another one who tried to make a living from selling the writings of Tom Paine on street corners. In 1817 Carlile decided to rent a shop in Fleet Street and become a publisher. This included the radical newspaper called The Republican. On 16th August 1819, Carlile was one on the main speakers at a meeting on parliamentary reform at St. Peter's Fields in Manchester. The local magistrates ordered the yeomanry (part-time cavalry) to break up the meeting. Just as Hunt was about to speak, the yeomanry charged the crowd and in the process killed eleven people. Afterwards, this event became known as the Peterloo Massacre.

In the next edition of his newspaper he wrote a first-hand account of the massacre. Carlile not only described how the military had charged the crowd but also criticised the government for its role in the incident. Under the seditious libel laws, it was offence to publish material that might encourage people to hate the government. In October 1819, Carlile was found guilty of blasphemy and seditious libel and was sentenced to three years in Dorchester Gaol. Carlile was also fined £1,500 and when he refused to pay, his Fleet Street offices were raided and his stock was confiscated.

When Richard Carlile was released from prison in November 1825 he returned to publishing newspapers. Carlile was now a strong supporter of women's rights. He argued that "equality between the sexes" should be the objective of all reformers. Carlile wrote articles in his newspapers suggesting that women should have the right to vote and be elected to Parliament. In 1826 he also published Every Woman's Book, a book that advocated birth control and the sexual emancipation of women.

In 1831 Henry Hetherington began publishing The Poor Man's Guardian. Hetherington's refused to pay the 4d. stamp duty on each paper sold. On the front page, where the red spot of the stamp duty should have been, Hetherington printed the slogan "Knowledge is Power". Underneath were the words, "Published in Defiance of the Law, to try the Power of Right against Might".

By 1833 circulation had reached 22,000, with two-thirds of the copies being sold in the provinces. In a three year period, twenty-five of these forty agents went to prison for selling an unstamped newspaper. One of those was arrested was George Julian Harney, who was imprisoned three times for selling the Poor Man's Guardian. Later Harney was to become the editor of the very successful Chartist newspaper, The Northern Star.

The campaign for an untaxed press obtained a boost in June 1834 when it was ruled that the Poor Man's Guardian was not an illegal publication. The newspaper reported: "After all the badgerings of the last three years - after all the fines and incarcerations - after all the spying and blood-money, the Poor Man's Guardian was pronounced, on Tuesday by the Court of Exchequer (and by a Special Jury too) to be a perfectly legal publication." As a result of this court ruling, Henry Hetherington invested in a new printing press, the Napier double-cylinder, a machine capable of printing 2,500 copies an hour.

The authorities responded by ordering an increase in the prosecution of newspaper sellers. Joseph Swann was another reformer who tried to make a living from selling the The Poor Man's Guardian. In 1835 he was sentenced to four and a half years for selling the newspaper. During the trial he explained his actions. "I have been unemployed for some time, neither can I obtain work, my family are starving. And for another reason, the most important of all, I sell them for the good of my countrymen."

In 1835 the two leading unstamped radical newspapers, The Poor Man's Guardian, and The Police Gazette, were selling more copies in a day than The Times sold all week. It was estimated at the time that the circulation of leading six unstamped newspapers had now reached 200,000.

The government decided to bring an end to the reformist press. Ignoring the court decision, in 1835 the offices of the newspaper were raided. Hetherington's stock and equipment, including his new Napier printing machine, was seized and destroyed. For a while Henry Hetherington printed the Poor Man's Guardian on borrowed equipment but in December, 1835, he was forced to cease publication.

Although the authorities had stopped burning heretics people did not have complete freedom of speech in religious matters. In August 1842, George Holyoake, the editor of Oracle of Reason, was charged with "condemning Christianity" in a speech he made at Cheltenham. He was found guilty and sentenced to six months in prison. This did not stop Holyoake in his campaign for freedom of speech and established The Reasoner. Over the next fifteen years the journal became one of the most important working class journals of the 19th century.

Despite the extension of the vote, the Church was still able to prevent the publication of books and pamphlets. For example, the Church was totally opposed to the use of contraception to control family size. In 1877 Annie Besant and Charles Bradlaugh decided to publish The Fruits of Philosophy, written by Charles Knowlton, a book that advocated birth control. Besant and Bradlaugh were charged with publishing material that was "likely to deprave or corrupt those whose minds are open to immoral influences". In court they argued that "we think it more moral to prevent conception of children than, after they are born, to murder them by want of food, air and clothing." Besant and Bradlaugh were both found guilty of publishing an "obscene libel" and sentenced to six months in prison. At the Court of Appeal the sentence was quashed.

Even in the 20th century the Church continued to use its influence to try to stop people discussing this issue. Guy Aldred was someone who spent his life campaigning against censorship. In 1909 he was sentenced to twelve months hard labour for printing the August issue of The Indian Sociologist, an Indian nationalist newspaper edited by Shyamji Krishnavarma.

In 1921 Aldred established the Anti-Parliamentary Communist Federation (APCF), a breakaway group from the Communist Party of Great Britain. He edited the organisation's newspaper, The Communist. The authorities began to investigate this group and Aldred, Jenny Patrick, Douglas McLeish and Andrew Fleming were eventually arrested and charged with sedition. After being held in custody for nearly four months they appeared at Glasgow High Court on 21st June 1921. They were all found guilty. The Socialist reported: "Lord Skerrington then passed sentences: Guy Aldred, one year: Douglas McLeish three months: Jane Patrick, three months, Andrew Fleming (the printer), three months and a fine of £50, or another three months."

Patrick Dollan, wrote in The Daily Herald: "Guy Aldred, in prison for exercising the traditional right of free speech, was imprisoned four months before his trial, then sentenced for a year and not allowed to count the four months he had already served as part of this imprisonment. The brutality of this sentence is a disgrace to the country, and nothing can remove that disgrace except the organised power of Labour."

After his release from prison Guy Aldred and his partner, Rose Witcop, joined the campaign for birth-control information that had began by Marie Stopes publishing a concise guide to contraception called Wise Parenthood. Aldred and Witcop published several pamphlets on birth-control and on 22nd December, 1922 he was prosecuted for publishing Family Limitation, a pamphlet written by Margaret Sanger. Aldred conducted his own defence. Among the witnesses he called was Sir Arbuthnot Lane, a leading surgeon at Guy's Hospital. He argued that the pamphlet should be read by every young person about to be married. Despite this, the magistrate ordered the books to be destroyed "in the interests of the morals of society."

As one can see, the freedom to express opinions that are not shared by people in authority, has been a long-drawn struggle. For most of the time, those in authority, use the most extreme form of punishment they can get away with. Henry VIII and Mary believed in setting fire to people. Elizabeth, who considered herself a humane ruler, preferred the idea of removing the offender's right hand. However, as she discovered, extreme forms of punishment can lose you the support of your people. In January, 1580, Elizabeth admitted to the Duke of Alençon that public opinion made their marriage impossible.

In the 20th century dictators such as Adolf Hitler and Joseph Stalin had few qualms about executing those who advocated free speech. (Stalin discovered the best way of keeping people quiet is to threaten the lives of their children. Something that has been repeated recently by people using social media.) Freedom of speech is denied in all dictatorships.

Over the last few years, people who have been unable to gain the right to freely express their views in their own society, have decided to use methods employed by religious and political dictatorships, to silence people living in democracies. In many ways it has worked because people have employed self-censorship. As Miloš Forman, who worked as a film director in the communist regime of Czechoslovakia, once pointed out: "The worst evil is - and that's the product of censorship - is the self-censorship, because that twists spines, that destroys my character because I have to think something else and say something else, I have to always control myself."

The journalists at Charlie Hebdo were unwilling to impose self-censorship and they have paid the ultimate price. Their lives will not have been wasted if newspaper and television companies follow the example of Wikipedia and refuse to be intimidated into silence.


Free Speech, "The People's Darling Privilege"

Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History is a non-fiction book about the history of freedom of speech in the United States written by Michael Kent Curtis and published in 2000 by Duke University Press. The book discusses the evolution of free speech in the U.S. within the context of the actions of individuals and how they affected change. The author writes that protests and actions by citizens helped to evolve the notions surrounding free speech in the U.S. before definitive statements on the matter from U.S. courts. Curtis writes that free speech rights were first developed in "the forum of public opinion", [1] and that, "The history of free speech shows the need for broadly protective free speech rules applied generally and equally". [2]

For his work on Free Speech, "The People's Darling Privilege", Curtis received the Hugh M. Hefner First Amendment Award and the Mayflower Cup Award. Critics gave the book a positive reception. A review in Columbia Journalism Review called it a "rich and original study", [1] and The Journal of American History said that it includes "fine analytic discussions". [3] Perspectives on Political Science called the book "an extremely valuable contribution to the literature addressing the history of free speech in America." [4] Timothy C. Shiell of the University of Wisconsin–Stout reviewed it for The Historian and wrote, "Michael Kent Curtis offers a major contribution to the scholarship of both that era and of free speech." [2]


The History of Freedom of Speech - History

Freedom of Speech was the first in a series of four paintings which depict examples of the four basic freedoms of Americans. Freedom of Speech depicts a young man who appears to be of the American working class, given his plain clothing over which he wears a plain, brown jacket. Protruding from a front pocket of the jacket is a folded document that appears to bear importance in the matter at hand.

The Painting’s Characters

This main character of the painting is standing in the midst of a meeting of importance to the locality in which he lives and/or works. He is surrounded by older gentlemen, wearing traditional suits and ties, but who are looking at him with a degree of curiosity mixed with consideration for the young man’s oratory. The young man appears to be unfazed by his modest attire in the midst of formality, focusing instead on the subject matter that concerned him to the extent that he felt it necessary to attend this meeting and speak his mind.

The Artist

Freedom of Speech was painted by renowned American artist, humorist, and painter, Norman Rockwell. The inspiration for the painting came from the State of the Union address, delivered in January of 1941 by President Franklin D. Roosevelt, in which he set forth the four basic freedoms that Americans have the right to enjoy. This painting was the first of the series and appeared on the cover of The Saturday Evening Post‘s February 20th issue.

Subtle Depictions

Mr. Rockwell, in his usual style, includes discreet inferences in this painting which may not be immediately obvious upon initial viewing. For instance, the bench immediately in front of the young man is conspicuously empty. This has been viewed by some as an invitation to the viewer to attend the meeting as well. Others see the empty bench as a portrayal of the fact that someone did not feel compelled to attend the meeting.

Another interesting fact behind this painting is Mr. Rockwell’s inclusion of the faces of people he knows in his work.

And, finally, the manner in which he pointedly signs his own name in the dark background of the painting depicts his own humility in the face of such a powerful message.


The History of Freedom of Speech - History

John Milton, back in 1644, said, "He who destroys a good book, kills reason itself." (Smith & Torres, 2006) He was, of course, speaking in reference to Free Speech at a time when speech, the press, literature, and many other mediums were censored by Governments and societies.

The History of Free Speech and Censorship goes back long before Milton's time and has continued to change and effect the way we live to this day. It was not until 1689 that the English Bill of Rights gave the right of Freedom of Speech to Parliament (Smith & Torres). Exactly 100 years later, France's "Declaration of the Rights of Man", a document meant to lay out French Revolutionaries' ideals for all men, provided for Freedom of Speech, but only philosophically as the Document was more of a proclamation than a Constitution. In 1791, with the passing of the Bill of Rights, the young United States provided, through law, a right to Freedom of Speech for its citizens.

Despite the trend toward the Freedom of Speech on a Global level, however, there have been setbacks. Controls have been placed on the Freedom of Speech when Governments become tyrannical, threatened in times of war or financial crisis, etc. The US's Patriot Act that followed 9/11 was passed to allow the Government power to investigate individuals who are suspected threats, causing fear for the protection of civil liberties. (Smith & Torres) Similar restrictions have been passed in the UK when, in 2005, the Government banned protests without permit within 1km of Parliament.

As History has proven time and time again, the issue of how free to make speech is one that is very difficult to solve perfectly. Rather, a "give-and-take" has established where five steps towards universally free speech can mean five steps backwards years later.


Defining Freedom of Expression and the Supreme Court (Part Two): Fighting Words, Libel, Hustler Magazine, Public Schools and Symbolic Speech

Jerry Falwell, who unsuccessfully attempted to sue Hustler Magazine in 1988, establishing that parody is protected speech.

This is part two of an examination of the limits of freedom of expression established by key Supreme Court decisions. Please read the first part here.

Over two decades after the Schenk decision, the U.S. Supreme Court ruled on a case relating to “fighting words” – words spoken at close range in intent to provoke physical action. In November 1941, a man by the name of Walter Chaplinsky was arrested for calling a Rochester, New Hampshire police officer a “damned fascist” and a racketeer on a public street in close proximity to the officer.[1] While he was fined and not imprisoned, Chaplinsky appealed the ruling on the grounds that his rights to freedom of speech were violated. In Chaplinsky v. New Hampshire (1942) the Supreme Court reached a unanimous decision upholding the New Hampshire law. The Supreme Court established a precedent that speech, “likely to provoke the average person to retaliation, and thereby cause a breach of peace”[2] is not constitutionally protected. While freedom of speech is hallmark to any democracy, the Supreme Court has determined that fighting words do not need to be constitutionally protected because they can potentially bring disorder to society.

In the turbulent 1960s, several important cases involving the freedom of expression were appealed and argued before the U.S. Supreme Court. In New York Times v. Sullivan (1964), an elected police commissioner sued the New York Times for an advertisement in their paper that was critical of police in Montgomery, Alabama. The advertisement made a series of statements about police treatment of civil rights leaders, some of which were not factual. Despite the fact that he was never mentioned by name, L.B. Sullivan felt the article libeled him because to be critical of the police was to, in turn, be critical of the commissioner. A case without precedent, Sullivan’s lawsuit against the New York Times traveled all the way to the Supreme Court.

Sullivan’s lawsuit was symbolic of something much greater at the time. “Many Southerners bitterly resented northern efforts to promote civil rights of African American in the South. To many in Alabama, the New York Times symbolized all that they disliked.”[3] Rather than have the case tried in New York (as that is where the New York Times was based), Sullivan had the case tried in the Alabama Supreme Court. Sullivan was awarded a sum of a half million dollars based on Alabama’s libel law. Disagreeing with the ruling, the New York Times appealed the ruling to the U.S. Supreme Court – an unprecedented action at that time because state law had always handled libel cases.[4]

Unlike the Alabama State Supreme Court, the U.S. Supreme Court ruled 9-0 in the New York Time’s favor. In the eyes of the justices, the factual errors that were made in the advertisement were of “mere negligence and not actual malice.”[5] Their ruling set two precedents. First, the Supreme Court set a precedent that in order to be guilty of libeling public figures, there had to be a deliberate attempt to publish falsehoods or show a “reckless” disregard for the truth. Second, overturning the Alabama Supreme Court, the U.S. Supreme Court Justices applied the First and Fourteenth Amendments (capitalize?) to determine that states cannot award damages to a public official without proving “actual malice.”
Continue reading &rarr


Free Speech: The History of our First Amendment Right

Unlike today’s modern world, freedom of speech has not always been a right and, particularly in US history, the government has not always preserved it. The tradition of freedom of speech has been challenged by several hundred years of war, of changes in culture and of legal challenges.

Recommended Reading

US History Timeline: The Dates of America’s Journey
The American Revolution: The Dates, Causes, and Timeline in the Fight for Independence
The Louisiana Purchase: America’s Big Expansion

After listening to a suggestion made by Thomas Jefferson, James Madison secured the Bill of Rights, of which the First Amendment is a part of, ensuring it was included in the US Constitution. The theory of the First Amendment is that it is there to protect people’s rights to free speech. In practice, it is more of a symbolic gesture.

President John Adams took umbrage when his administration was criticized and made a successful push for the Alien and Sedition Acts. The Sedition Act was aimed at those people who supported Thomas Jefferson and it was passed to restrict people from criticizing any President. In 1800, Thomas Jefferson took over the presidency and the law expired. John Adams party would never again be in a position of power.

In 1873 the Federal Comstock Act was passed, granting the US Postal Service the authority to be able to censor mail. In particular, it was aimed at letters containing material that could be classed as “obscene, lewd and /or lascivious”.

The desecration of the US Flag was officially banned in South Dakota and Illinois, Pennsylvania in this year. This ban was to last almost 100 years before the Supreme Court declared the ban as unconstitutional and lifted it.

In this year, the Sedition Act was passed to target socialists, anarchists and any other left-wing activists that were against the participation of the US in World War 1. This marks the nearest point to which the US Government came to adopting a model of government that could be classed as Fascist and nationalist.


Contents

Freedom of speech and expression has a long history that predates modern international human rights instruments. [5] It is thought that the ancient Athenian democratic principle of free speech may have emerged in the late 6th or early 5th century BC. [6] The values of the Roman Republic included freedom of speech and freedom of religion. [7]

Freedom of speech was vindicated by Erasmus and Milton. [5] Edward Coke claimed freedom of speech as "an ancient custom of Parliament" in the 1590s, and it was affirmed in the Protestation of 1621. [8] England's Bill of Rights 1689 legally established the constitutional right of freedom of speech in Parliament which is still in effect. [9] [10]

One of the world's first freedom of the press acts was introduced in Sweden in 1766, mainly due to the classical liberal member of parliament and Ostrobothnian priest Anders Chydenius. [11] [12] [13] [14] Excepted and liable to prosecution was only vocal opposition to the King and the Church of Sweden.

The Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right. [5] Adopted in 1791, freedom of speech is a feature of the First Amendment to the United States Constitution. [15] The French Declaration provides for freedom of expression in Article 11, which states that:

The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law. [16]

Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that:

Everyone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. [17]

Today, freedom of speech, or the freedom of expression, is recognised in international and regional human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights. [18] Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:

  1. the right to seek information and ideas
  2. the right to receive information and ideas
  3. the right to impart information and ideas

International, regional and national standards also recognise that freedom of speech, as the freedom of expression, includes any medium, whether it be orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression. [18]

Relationship to other rights Edit

The right to freedom of speech and expression is closely related to other rights, and may be limited when conflicting with other rights (see limitations on freedom of speech). [18] The right to freedom of expression is also related to the right to a fair trial and court proceeding which may limit access to the search for information, or determine the opportunity and means in which freedom of expression is manifested within court proceedings. [19] As a general principle freedom of expression may not limit the right to privacy, as well as the honor and reputation of others. However greater latitude is given when criticism of public figures is involved. [19]

The right to freedom of expression is particularly important for media, which plays a special role as the bearer of the general right to freedom of expression for all. [18] However, freedom of the press does not necessarily enable freedom of speech. Judith Lichtenberg has outlined conditions in which freedom of the press may constrain freedom of speech, for example, if all the people who control the various mediums of publication suppress information or stifle the diversity of voices inherent in freedom of speech. This limitation was famously summarized as "Freedom of the press is guaranteed only to those who own one". [20] Lichtenberg argues that freedom of the press is simply a form of property right summed up by the principle "no money, no voice." [21]

As a negative right Edit

Freedom of speech is usually seen as a negative right. [22] This means that the government is legally obliged to take no action against the speaker on the basis of the speaker's views, but that no one is obliged to help any speakers publish their views, and no one is required to listen to, agree with, or acknowledge the speaker or the speaker's views.

Freedom of speech is understood to be fundamental in a democracy. The norms on limiting freedom of expression mean that public debate may not be completely suppressed even in times of emergency. [19] One of the most notable proponents of the link between freedom of speech and democracy is Alexander Meiklejohn. He has argued that the concept of democracy is that of self-government by the people. For such a system to work, an informed electorate is necessary. In order to be appropriately knowledgeable, there must be no constraints on the free flow of information and ideas. According to Meiklejohn, democracy will not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism. Meiklejohn acknowledges that the desire to manipulate opinion can stem from the motive of seeking to benefit society. However, he argues, choosing manipulation negates, in its means, the democratic ideal. [23]

Eric Barendt has called this defence of free speech on the grounds of democracy "probably the most attractive and certainly the most fashionable free speech theory in modern Western democracies.". [24] Thomas I. Emerson expanded on this defence when he argued that freedom of speech helps to provide a balance between stability and change. Freedom of speech acts as a "safety valve" to let off steam when people might otherwise be bent on revolution. He argues that "The principle of open discussion is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus." Emerson furthermore maintains that "Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay." [25]

Research undertaken by the Worldwide Governance Indicators project at the World Bank, indicates that freedom of speech, and the process of accountability that follows it, have a significant impact in the quality of governance of a country. "Voice and Accountability" within a country, defined as "the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and free media" is one of the six dimensions of governance that the Worldwide Governance Indicators measure for more than 200 countries. [26] Against this backdrop it is important that development agencies create grounds for effective support for a free press in developing countries. [27]

Richard Moon has developed the argument that the value of freedom of speech and freedom of expression lies with social interactions. Moon writes that "by communicating an individual forms relationships and associations with others – family, friends, co-workers, church congregation, and countrymen. By entering into discussion with others an individual participates in the development of knowledge and in the direction of the community." [28]

Freedom of speech is not regarded as absolute by some with most legal systems generally setting limits on the freedom of speech, particularly when freedom of speech conflicts with other rights and protections, such as in the cases of libel, slander, pornography, obscenity, fighting words, and intellectual property.

Some limitations to freedom of speech may occur through legal sanction, and others may occur through social disapprobation. [30]

Harmful and offensive content Edit

Some views are illegal to express because it can cause harm to others. This category often includes speech that is both false and dangerous, such as falsely shouting "Fire!" in a theatre and causing a panic. Justifications for limitations to freedom of speech often reference the "harm principle" or the "offence principle."

In On Liberty (1859), John Stuart Mill argued that ". there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered." [30] Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. [31] [32] [33] [34]

In 1985, Joel Feinberg introduced what is known as the "offence principle". Feinberg wrote, "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offence (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end." [35] Hence Feinberg argues that the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm. [35] In contrast, Mill does not support legal penalties unless they are based on the harm principle. [30] Because the degree to which people may take offence varies, or may be the result of unjustified prejudice, Feinberg suggests that a number of factors need to be taken into account when applying the offence principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offence, and the general interest of the community at large. [30]

Jasper Doomen argued that harm should be defined from the point of view of the individual citizen, not limiting harm to physical harm since nonphysical harm may also be involved Feinberg's distinction between harm and offence is criticized as largely trivial. [36]

In 1999, Bernard Harcourt wrote of the collapse of the harm principle: "Today the debate is characterized by a cacophony of competing harm arguments without any way to resolve them. There is no longer an argument within the structure of the debate to resolve the competing claims of harm. The original harm principle was never equipped to determine the relative importance of harms." [37]

Interpretations of both the harm and offense limitations to freedom of speech are culturally and politically relative. For instance, in Russia, the harm and offense principles have been used to justify the Russian LGBT propaganda law restricting speech (and action) in relation to LGBT issues. A number of European countries that take pride in freedom of speech nevertheless outlaw speech that might be interpreted as Holocaust denial. These include Austria, Belgium, Canada, the Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Russia, Slovakia, Switzerland and Romania. [38] Armenian genocide denial is also illegal in some countries.

In some countries, blasphemy is a crime. For example, in Austria, defaming Muhammad, the prophet of Islam, is not protected as free speech. [39] [40] [41] In contrast, in France, blasphemy and disparagement of Muhammad are protected under free speech law.

Certain public institutions may also enact policies restricting the freedom of speech, for example speech codes at state-operated schools.

In the U.S., the standing landmark opinion on political speech is Brandenburg v. Ohio (1969), [42] expressly overruling Whitney v. California. [43] In Brandenburg, the U.S. Supreme Court referred to the right even to speak openly of violent action and revolution in broad terms:

[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action. [44]

The opinion in Brandenburg discarded the previous test of "clear and present danger" and made the right to freedom of (political) speech protections in the United States almost absolute. [45] [46] Hate speech is also protected by the First Amendment in the United States, as decided in R.A.V. v. City of St. Paul, (1992) in which the Supreme Court ruled that hate speech is permissible, except in the case of imminent violence. [47] See the First Amendment to the United States Constitution for more detailed information on this decision and its historical background.

Time, place, and manner Edit

Limitations based on time, place, and manner apply to all speech, regardless of the view expressed. [48] They are generally restrictions that are intended to balance other rights or a legitimate government interest. For example, a time, place, and manner restriction might prohibit a noisy political demonstration at a politician's home during the middle of the night, as that impinges upon the rights of the politician's neighbors to quiet enjoyment of their own homes. An otherwise identical activity might be permitted if it happened at a different time (e.g., during the day), at a different place (e.g., at a government building or in another public forum), or in a different manner (e.g., a silent protest).

The Internet and information society Edit

Jo Glanville, editor of the Index on Censorship, states that "the Internet has been a revolution for censorship as much as for free speech". [50] International, national and regional standards recognise that freedom of speech, as one form of freedom of expression, applies to any medium, including the Internet. [18] The Communications Decency Act (CDA) of 1996 was the first major attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the US Supreme Court partially overturned the law. [51] Judge Stewart R. Dalzell, one of the three federal judges who in June 1996 declared parts of the CDA unconstitutional, in his opinion stated the following: [52]

The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result. Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar – in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.[. ] My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication. The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalising obscenity and child pornography. [. ] As we learned at the hearing, there is also a compelling need for public educations about the benefits and dangers of this new medium, and the Government can fill that role as well. In my view, our action today should only mean that Government's permissible supervision of Internet contents stops at the traditional line of unprotected speech. [. ] The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of the plaintiff's experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is chaos." Just as the strength of the Internet is chaos, so that strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects. [52]

The World Summit on the Information Society (WSIS) Declaration of Principles adopted in 2003 makes specific reference to the importance of the right to freedom of expression for the "Information Society" in stating:

We reaffirm, as an essential foundation of the Information society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits of the Information Society offers. [53]

According to Bernt Hugenholtz and Lucie Guibault, the public domain is under pressure from the "commodification of information" as information with previously little or no economic value has acquired independent economic value in the information age. This includes factual data, personal data, genetic information and pure ideas. The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law. [54]

Freedom of information Edit

Freedom of information is an extension of freedom of speech where the medium of expression is the Internet. Freedom of information may also refer to the right to privacy in the context of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognised human right and freedom of information acts as an extension to this right. [55] Freedom of information may also concern censorship in an information technology context, i.e. the ability to access Web content, without censorship or restrictions. [56]

Freedom of information is also explicitly protected by acts such as the Freedom of Information and Protection of Privacy Act of Ontario, in Canada. The Access to Information Act gives Canadian citizens, permanent residents, and any person or corporation present in Canada a right to access records of government institutions that are subject to the Act. [57]

Internet censorship Edit

The concept of freedom of information has emerged in response to state sponsored censorship, monitoring and surveillance of the internet. Internet censorship includes the control or suppression of the publishing or accessing of information on the Internet. [58] The Global Internet Freedom Consortium claims to remove blocks to the "free flow of information" for what they term "closed societies." [59] According to the Reporters without Borders (RWB) "internet enemy list" the following states engage in pervasive internet censorship: China, Cuba, Iran, Myanmar/Burma, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan, and Vietnam. [60]

A widely publicized example of internet censorship is the "Great Firewall of China" (in reference both to its role as a network firewall and to the ancient Great Wall of China). The system blocks content by preventing IP addresses from being routed through and consists of standard firewall and proxy servers at the Internet gateways. The system also selectively engages in DNS poisoning when particular sites are requested. The government does not appear to be systematically examining Internet content, as this appears to be technically impractical. [61] Internet censorship in the People's Republic of China is conducted under a wide variety of laws and administrative regulations, including more than sixty regulations directed at the Internet. Censorship systems are vigorously implemented by provincial branches of state-owned ISPs, business companies, and organizations. [62] [63]

Some legal scholars (such as Tim Wu of Columbia University) have argued that the traditional issues of free speech -- that "the main threat to free speech" is the censorship of "suppressive states," and that "ill-informed or malevolent speech" can and should be overcome by "more and better speech" rather than censorship -- assumes a scarcity of information. This scarcity prevailed during the 20th century, but with the arrival of the internet, information became plentiful, "but the attention of listeners" scarce. And in the words of Wu, this “cheap speech" made possible by the internet " . may be used to attack, harass, and silence as much as it is used to illuminate or debate.” [64] [65]

In the 21st century, the danger is not "suppressive states" that target "speakers directly", but that

targets listeners or it undermines speakers indirectly. More precisely, emerging techniques of speech control depend on (1) a range of new punishments, like unleashing “troll armies” to abuse the press and other critics, and (2) “flooding” tactics (sometimes called “reverse censorship”) that distort or drown out disfavored speech through the creation and dissemination of fake news, the payment of fake commentators, and the deployment of propaganda robots. [66] As journalist Peter Pomerantsev writes, these techniques employ “information . in weaponized terms, as a tool to confuse, blackmail, demoralize, subvert and paralyze.” [67] [64]

Before the invention of the printing press, a written work, once created, could only be physically multiplied by highly laborious and error-prone manual copying. No elaborate system of censorship and control over scribes existed, who until the 14th century were restricted to religious institutions, and their works rarely caused wider controversy. In response to the printing press, and the theological heresies it allowed to spread, the Roman Catholic Church moved to impose censorship. [68] Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture). [69] The origins of copyright law in most European countries lie in efforts by the Roman Catholic Church and governments to regulate and control the output of printers. [69]

In 1501 Pope Alexander VI issued a Bill against the unlicensed printing of books. In 1559 Pope Paul IV promulgated the Index Expurgatorius, or List of Prohibited Books. [68] The Index Expurgatorius is the most famous and long lasting example of "bad books" catalogues issued by the Roman Catholic Church, which presumed to be in authority over private thoughts and opinions, and suppressed views that went against its doctrines. The Index Expurgatorius was administered by the Roman Inquisition, but enforced by local government authorities, and went through 300 editions. Amongst others, it banned or censored books written by René Descartes, Giordano Bruno, Galileo Galilei, David Hume, John Locke, Daniel Defoe, Jean-Jacques Rousseau and Voltaire. [71] While governments and church encouraged printing in many ways because it allowed for the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licenses to trade and produce books. [69]

The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing and the press. Areopagitica, published in 1644, was John Milton's response to the Parliament of England's re-introduction of government licensing of printers, hence publishers. [72] Church authorities had previously ensured that Milton's essay on the right to divorce was refused a license for publication. In Areopagitica, published without a license, [73] Milton made an impassioned plea for freedom of expression and toleration of falsehood, [72] stating:

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. [72]

Milton's defense of freedom of expression was grounded in a Protestant worldview, and he thought that the English people had the mission to work out the truth of the Reformation, which would lead to the enlightenment of all people. But Milton also articulated the main strands of future discussions about freedom of expression. By defining the scope of freedom of expression and of "harmful" speech Milton argued against the principle of pre-censorship and in favor of tolerance for a wide range of views. [72] Freedom of the press ceased being regulated in England in 1695 when the Licensing Order of 1643 was allowed to expire after the introduction of the Bill of Rights 1689 shortly after the Glorious Revolution. [76] [77] The emergence of publications like the Tatler (1709) and the Spectator (1711) are given credit for creating a 'bourgeois public sphere' in England that allowed for a free exchange of ideas and information.

As the "menace" of printing spread, more governments attempted to centralize control. [78] The French crown repressed printing and the printer Etienne Dolet was burned at the stake in 1546. In 1557 the British Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books." The right to print was restricted to two universities and to the 21 existing printers in the city of London, which had 53 printing presses. As the British crown took control of type founding in 1637 printers fled to the Netherlands. Confrontation with authority made printers radical and rebellious, with 800 authors, printers and book dealers being incarcerated in the Bastille in Paris before it was stormed in 1789. [78]

A succession of English thinkers was at the forefront of early discussion on a right to freedom of expression, among them John Milton (1608–74) and John Locke (1632–1704). Locke established the individual as the unit of value and the bearer of rights to life, liberty, property and the pursuit of happiness. However Locke's ideas evolved primarily around the concept of the right to seek salvation for one's soul, and was thus primarily concerned with theological matters. Locke neither supported a universal toleration of peoples nor freedom of speech according to his ideas, some groups, such as atheists, should not be allowed. [79]

By the second half of the 17th century philosophers on the European continent like Baruch Spinoza and Pierre Bayle developed ideas encompassing a more universal aspect freedom of speech and toleration than the early English philosophers. [79] By the 18th century the idea of freedom of speech was being discussed by thinkers all over the Western world, especially by French philosophes like Denis Diderot, Baron d'Holbach and Claude Adrien Helvétius. [81] The idea began to be incorporated in political theory both in theory as well as practice the first state edict in history proclaiming complete freedom of speech was the one issued December 4, 1770 in Denmark-Norway during the regency of Johann Friedrich Struensee. [82] However Struensee himself imposed some minor limitations to this edict on October 7, 1771, and it was even further limited after the fall of Struensee with legislation introduced in 1773, although censorship was not reintroduced. [83]

John Stuart Mill (1806–1873) argued that without human freedom there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill's On Liberty, published in 1859 became a classic defence of the right to freedom of expression. [72] Mill argued that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared. Truth is not stable or fixed, but evolves with time. Mill argued that much of what we once considered true has turned out false. Therefore, views should not be prohibited for their apparent falsity. Mill also argued that free discussion is necessary to prevent the "deep slumber of a decided opinion". Discussion would drive the onwards march of truth and by considering false views the basis of true views could be re-affirmed. [84] Furthermore, Mill argued that an opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech. [85]

In her biography of Voltaire, Evelyn Beatrice Hall coined the following sentence to illustrate Voltaire's beliefs: "I disapprove of what you say, but I will defend to the death your right to say it." [86] Hall's quote is frequently cited to describe the principle of freedom of speech. [86] In the 20th Century, Noam Chomsky stated, "If you believe in freedom of speech, you believe in freedom of speech for views you don't like. Dictators such as Stalin and Hitler, were in favor of freedom of speech for views they liked only. If you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise." [87] Lee Bollinger argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." Bollinger argues that tolerance is a desirable value, if not essential. However, critics argue that society should be concerned by those who directly deny or advocate, for example, genocide (see limitations above). [88]

The 1928 novel Lady Chatterley's Lover by D. H. Lawrence was banned for obscenity in a number of countries, including the United Kingdom, the United States, Australia and Canada. In the late 1950s and early 1960s, it was the subject of landmark court rulings which saw the ban for obscenity overturned. Dominic Sandbrook of The Telegraph in the UK wrote, "Now that public obscenity has become commonplace, it is hard to recapture the atmosphere of a society that saw fit to ban books such as Lady Chatterley's Lover because it was likely to 'deprave and corrupt' its readers." [89] Fred Kaplan of The New York Times stated the overturning of the obscenity laws "set off an explosion of free speech" in the U.S. [90] The 1960s also saw the Free Speech Movement, a massive long-lasting student protest on the campus of the University of California, Berkeley during the 1964–65 academic year. [91]

In 1964 comedian Lenny Bruce was arrested in the U.S. due to complaints again pertaining to his use of various obscenities. A three-judge panel presided over his widely publicized six-month trial in which he was found guilty of obscenity in November 1964. He was sentenced on December 21, 1964, to four months in a workhouse. [92] He was set free on bail during the appeals process and died before the appeal was decided. On December 23, 2003, thirty-seven years after Bruce's death, New York Governor George Pataki granted him a posthumous pardon for his obscenity conviction. [93]

In the United States, the right to freedom of expression has been interpreted to include the right to take and publish photographs of strangers in public areas without their permission or knowledge. [94] [95] This is not the case worldwide.

In July 2014, the University of Chicago released the "Chicago Statement," a free speech policy statement designed to combat censorship on campus. This statement was later adopted by a number of top-ranked universities including Princeton University, Washington University in St. Louis, Johns Hopkins University, and Columbia University. [96] [97]

Commentators such as Vox's Zack Beauchamp and Chris Quintana, writing in The Chronicle of Higher Education, have disputed the assumption that college campuses are facing a "free-speech crisis." [98] [99]


Freedom of Thought, Freedom of Speech: The Heritage of Western Civilization

ACTA President Michael Poliakoff presented his lecture at Ashland University's Ashbrook Center on April 24, 2018.

Our topic for today is the commitment to free speech and freedom of thought that is the foundation for a society’s success, the engine of human progress. We are going to see it in history in its full, creative power, and we are going to look at the threats that confront it today. Needless to say, it is an urgently important topic.

Lest I cast a pall, let me say that standing on this campus, I am optimistic. Ashland University is one of the few institutions in the nation that has endorsed strong principles of freedom of expression: students, faculty, administrators, and trustees have joined in this commitment. And there are few institutions in the nation that have articulated and taught so widely the principles of America’s Founding as the Ashbrook Center has done under Roger Beckett’s leadership and that of our late friend Peter Schramm.

Those who believe in what Thomas Jefferson called “the illimitable freedom of the human mind” have generally been secure, if not complacent, that this birthright of our nation is an unassailable fact of American life. To borrow Jefferson’s words, “we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left to combat it.”

But the fearless pursuit of truth with minds unfettered is indeed under assault. Let us be very clear in realizing that intellectual freedom and its handmaiden, freedom of speech, in all their manifestations in civic life and religion are rare and fragile phenomena that many throughout history have sought to crush out of existence. Protecting this freedom is no trivial matter.

Let me illustrate that point in a German phrase: Dort wo man Buecher verbrennt, verbrennt man auch am Ende Menschen. “There where people burn books, they will ultimately burn human beings as well.” Heine wrote those lines in 1821. A little over a century later, it was the works of such authors as Heine himself, along with Freud, Einstein, Kafka, James Joyce, Tolstoy, Joseph Conrad that were burned by the Nazis, soon followed, indeed, by the murder and burning of millions throughout Europe. At a number of places in Germany, you can find Heine’s grim, ironic warning on plaques marking the spots, many of them on university campuses, where these book burnings took place. And if you get a queasy feeling when you read nowadays about Mark Twain’s Huckleberry Finn being pulled from school library shelves or the demand for warning labels attached to Ovid or F. Scott Fitzgerald’s Great Gatsby, you have good reason for your disquiet. Or, indeed, just a few months ago, when Knox College in Illinois canceled the production of a play by Bertolt Brecht – one of the authors whose books 85 years ago the Nazis burned as “decadent.” And suppression by public shaming – continues: just this February, Kenyon College students and faculty kicked up such a row over a play about cultural insensitivity that the playwright in residence gave in and self-censored. The American campus has found neat ways to banish books even without the flames.

The story of freedom of the intellect and the political freedom on which it depends begins in ancient Greece, and we will put a particular focus on ancient Athens, which cultivated these freedoms in a way not seen again until the Founding of our nation. But the Greek miracle, which I do not hesitate to call it, transcended the Greeks.The achievement of ancient Greece, the breakthrough, was not a function of ethnicity or genetics. Freedom of the intellect and its supporting freedoms represent ultimately a story about the combination of social and political institutions that build free societies: it is a common human heritage from which everyone can learn. And if I don’t provide any other takeaways in this presentation, please hold on to that thought.

The 6 th century BCE is witness to a succession of thinkers who challenge the mythological pantheon of gods and goddesses and the prevailing explanations for the origin of the world. The essence of existence is water, said Thales no, said Anaximander, it is “the infinite.” Anaximenes said “air” “strife and change” said Heraclitus, symbolized by “fire.” “Indivisible oneness” said Parmenides, the thinker who so deeply influenced Plato. Xenophanes made the daring assertion: if oxen and horses and lions had hands, and could draw with their hands and do what men do, horses would draw the gods to be like horses, and oxen to be like oxen, and they would make the bodies of the gods similar to their own. And there is not a scrap of evidence that he was ever prosecuted, or harmed… or even, dare I say, “de-platformed.”

Does this intellectual daring from 25 centuries ago seem trivial? When South African artist Ronald Harrison in 1962 defied the racist apartheid regime and painted the dissident black African leader Albert Luthuli as Jesus, he was arrested and the painting was banned from South Africa. Despots who think they can punish art, of course, are fools: the painting was smuggled to the United Kingdom and returned to South Africa in 1997. It has undoubtedly been viewed hundreds of thousands of times on the Internet…


The Difficult History of Free Speech

Last year was a bad one for freedom of speech in Australia. It was not just the decision in the Andrew Bolt case, and calls from the Greens and others for the licensing of newspapers, that were depressing, but the obvious lack of understanding by many commentators of the history and philosophy of freedom of speech.

As with so many of the other important features of Western civilisation, the concept of freedom of speech can be traced back to the ancient Greeks. One of the first steps on the Greek path towards allowing freedom of speech was the first involvement of ordinary people in intellectual life. An early example came around 700 BC when Hesiod wrote his Theogeny, a theological work which considered &ldquothe gods and the universe &hellip as a matter of private interest&rdquo. The freedom of a non-cleric such as Hesiod to write about such matters was a radical departure from the civilisations of Egypt and Mesopotamia, where &ldquoreligious subjects were treated by members of the established hierarchy&rdquo.

A century later, the Ionian philosophers were also laypeople, such as an engineer (Thales) and a mapmaker (Anaximander), &ldquonot charged by their communities to concern themselves with spiritual matters&rdquo but &ldquomoved by their own desire for an understanding of nature &hellip they did not hesitate to publish their findings, although they were not professional seers&rdquo. They began to assess the origins of the world around them from first principles, not relying on received myth, thus beginning an era where matters of the religious and political order were open to debate.

This meant that the fate which befell Thersites in the second book of Homer&rsquos Iliad might not befall future generations of Greeks. Arlene W. Saxonhouse, in Free Speech and Democracy in Ancient Athens, makes the point that Homer described Thersites as the &ldquougliest soldier at the siege of Troy &hellip a blathering fool&rdquo and yet he delivers a fine speech echoing much of what the hero Achilles had said in a speech in Book One. Thersites gets a whack from Odysseus for his trouble but, as Athenian democracy evolves, men like Thersites get the chance to be heard and judged on the merit of their argument, not their status.

In Athens, the reforms of Solon in the 590s BC extended the right of citizens to express opinions, and the concept of free speech became a more practical reality after the reforms of Cleisthenes in Athens around 508 BC. According to Herodotus, the Athenians&rsquo dominance is directly linked to Cleisthenes&rsquos introduction of isegoria, freedom of speech in the Assembly of the Demos, as every hoplite now fought with greater valour, because he felt that collective victory served his own personal interest.

The trend towards an extremely liberal regime peaked in the age of Pericles in the 430s BC, but even Athenians had certain limits on what they considered acceptable. While dramatists such as Aristophanes used the freedom of speech to launch spirited attacks on public figures in their plays, the gradual decline of Athens compared to rivals such as Sparta and Thebes meant that not all saw the freedoms Athenians enjoyed as an advantage. The most famous example of this came when a popular jury found Socrates guilty of introducing false gods and corrupting the young and sentenced him to death.

The Roman republic sometimes allowed a reasonable degree of free speech for its citizens, but at other times it was repressive. One advocate of free speech in the dying days of the republic was Cato the Younger, the chief political antagonist of Julius Caesar and the Triumvirate, and called &ldquothe conscience of Rome&rdquo by Livy. Cato&rsquos name was to receive renewed reverence as the cause of freedom gathered support in the eighteenth century, when Cato was the hero of a popular London play written by Joseph Addison, which also became a favourite of George Washington. Cato&rsquos name was also used as a pseudonym by the British writers John Trenchard and Thomas Gordon, who published a series of letters from 1720 to 1723 condemning tyranny and promoting various freedoms, including freedom of speech.

Once the Roman republic had gone, tolerance of disloyal speech varied according to the identity of the emperor, with some such as Augustus, Claudius and Vespasian being reasonably tolerant, while other such as Tiberius, Caligula, Nero and Domitian allowed no dissent, with offending authors meeting fates such as being burned alive. The capricious nature of the state is well illustrated by the Emperor Constantine&rsquos conversion to Christianity in 312 AD. Until then, Christians were oppressed by the Roman state afterwards non-Christians were.

In the modern world, England became the leader in liberalising freedom-of-speech laws. While many writers hark back to the signing of Magna Carta in 1215, real progress began in the seventeenth century, particularly with the Petition of Right (1627), which meant that, at least in theory, no person could be arrested solely for disagreeing with the government. It is no coincidence that the period of enormous political upheaval in the lead-up to the Civil War saw the first recorded use of the expression &ldquofreedom of speech&rdquo, by Sir Edward Coke in his Institutes of the Laws of England (1628&ndash44),

At the height of the Civil War in 1644 came the publication of one of the most important works ever written about freedom of speech, John Milton&rsquos Areopagitica. Today, Milton is best remembered as the poet who wrote Paradise Lost. However, he was also a partisan in the English Civil War, producing a number of pamphlets in support of the cause of Parliament and Cromwell. In contrast to the bulk of his political output, Areopagitica was actually an attack on an act the Parliamentarians had passed in 1643. This law sought to impose a new form of censorship on a literary scene that had exploded into life after royal censorship broke down in about 1641.

Areopagitica is a powerful attack on the evils of censorship. The issue had become personal for Milton when his Doctrine and Discipline of Divorce was published in 1643. Its radical arguments, including advocacy of divorce, had been almost universally condemned, with religious leaders demanding that the work be burnt, while the Stationers&rsquo Company, with more secular concerns, were upset that his failure to obtain a licence jeopardised the copyright system.

Milton argued that censorship had not been a part of ancient Greek or Roman society. Areopagitica gets its name from the Areopagus, a hill in Athens, which was the ancient site of courts. In the fifth century BC, the hill&rsquos name had been invoked by the Athenian orator Isocrates, who gave a speech arguing for the restoration of power to the tribunals. Milton uses many other classical and biblical references, including St Paul in the Book of Acts, throughout the work. In one of the cleverest passages, Milton makes fun of the fact that &ldquodebtors and delinquents may walk abroad without a keeper, but unoffensive books must not stir forth without a visible jailer in their title&rdquo. A key argument of Milton&rsquos was that freedom of speech should never be proscribed in advance. Action should only take place once an offence had been committed.

Milton claimed that this censorship was a more recent Catholic import, a product of the King&rsquos Star Chamber, which had recently been abolished (1641), and which had been the principal opponent of the Protestant Parliament. In reality, licensing had been introduced, first by clergy in the 1520s, and then formalised by Henry VIII in 1538, in response to the explosion of printed material in the wake of Gutenberg and Caxton, material which often stimulated religious debate and conflict. Although, at the time of publication, Areopagitica did little to halt the practice of licensing, it would be viewed later as a significant milestone and one of the most eloquent defences of press freedom. The system of licensing publications remained until 1694, when finally publication was allowed without the accompaniment of a government-granted licence.

The case of John Wilkes in the 1760s demonstrated that the issue of freedom of speech was far from settled in England, even for the privileged, such as members of parliament. Angered by the actions of the Prime Minister, Lord Bute, in denying him advancement, Wilkes established a paper called the North Briton, which created several controversies, culminating in a strongly worded attack on the King&rsquos message to parliament. A warrant was issued &ldquoto search for authors, printers and publishers&rdquo, and Wilkes was arrested, but a week later, he was released by order of the Court of Common Pleas on the ground that his privilege as a member of parliament afforded him immunity from arrest. However, further charges led to his expulsion from the House of Commons, and he was found guilty in the courts and, because he was absent when sentenced, he was pronounced an outlaw. A few years later, Wilkes was elected as member for Middlesex and there ensued a series of contests without parallel in English history as the electors constantly returned him only for the Commons to reject the result. The cause of &ldquoWilkes and liberty&rdquo became a rallying cry for all those concerned with the promotion of freedom, specifically the freedom to espouse views the government found offensive. In 1774, Wilkes was accepted by the Commons, a landmark win for freedom of expression.

Two decades later, an important further step on the path towards freedom of speech came when, in 1792, the parliament passed a bill known as Fox&rsquos Libel Act, named after the great Whig politician Charles James Fox, which provided in sedition trials that truth must be accepted as a defence and that a jury, not a judge, must be the arbiter.

In the nineteenth century, the arguments in favour of freedom of speech were further developed by John Stuart Mill in On Liberty. Mill stated that &ldquoif all mankind minus one, were of one opinion, and one, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind&rdquo. Mill understood that the supposed falsity being suppressed may in fact turn out to be a truth. In his 1981 book Free Speech: A Philosophical Enquiry, Frederick Schauer bracketed Mill with Milton as key figures in &ldquothe argument from truth&rdquo rationale for &ldquofree speech&rdquo. Other rationales have included &ldquothe argument from democracy&rdquo, the need to hold politicians and government officials to proper account.

Schauer makes the point that both these arguments essentially &ldquoderive their strength from some conception of what is good for society as a whole, rather than from any concern for the well-being of individuals in a narrower sense&rdquo. He then assesses whether there are arguments that free speech is an intrinsic individual good. He finds little evidence that this is true per se, but believes that &ldquoAristotelian conceptions of happiness present a stronger argument for freedom of speech as an intrinsic good&rdquo. The good life can only be achieved through the &ldquocomplete use of the mind and the thinking process&rdquo.

As part of his assessment of this idea, Schauer cites F.A. Hayek&rsquos argument in The Constitution of Liberty that there is a tendency to overvalue the importance of ideas and communication compared to the freedom to actually do things. Similarly tied to other freedoms is his fourth chapter on arguments in favour of free speech on the basis of individual equality and dignity. An example of the argument here is provided by Locke&rsquos position in the Letter Concerning Tolerance when in Schauer&rsquos words he &ldquogrounds much of his argument on the premise that solely the individual is authorised to decide questions of faith&rdquo which applied to speech means that only the individual can determine what he or she is entitled to say.

By the time Mill was writing, England was in the final phase of liberalising its political freedom-of-speech laws. Yet there remained controls on various forms of speech, outlawing sedition, blasphemy and private libel. Later in the nineteenth century obscene publications became a new freedom-of-speech battleground. Socio-moral reform organisations, such as the National Vigilance Association established in 1886, were at the forefront of attempts to ban the publication of items such as risqué postcards and to prevent their importation and, in the words of Deana Heath,

thus transformed the regulation of the obscene into a project of imperial hygiene enacted through the erection of a cordon sanitaire to keep &ldquounhealthy&rdquo literature outside the geographical boundaries of both nation and empire.

While elements of English society were trying to prevent the corruption of Victorian values by Continental obscenity, in the previous two centuries progress on free speech had been slower on the Continent than in England. However, in the eighteenth century, the French Enlightenment played an important role in expanding the notion of freedom of speech. The best-remembered aspect of this is the oft-quoted phrase of Voltaire&rsquos, &ldquoI disagree with what you say but I will defend to the death your right to say it.&rdquo Now, Voltaire did not actually say these words&mdashthey were a biographer&rsquos summation of his views&mdashbut his and similar views were reflected in the French Revolution&rsquos seminal document, the Declaration of the Rights of Man and Citizen of August 1789:

The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.

In the same month, James Madison introduced the United States Bill of Rights into the House of Representatives of the First Congress. The first of the ten amendments to the Constitution stated that:

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.

While some may think that a very clear statement of intent, the fact that First Amendment issues have been the source of constant debate for the past two centuries demonstrates that the limits of free speech are never settled. As early as 1798, a Sedition Act was passed which included punishment for &ldquoany false, scandalous and malicious&rdquo writing about the government and led to the prosecution of several Republican editors for criticism of the Federalist administration of John Adams. The Act lapsed in 1801 and all those prosecuted were pardoned by the incoming President Jefferson.

In the middle of the nineteenth century, freedom of speech was an issue both in the lead-up to the Civil War, when many southern states passed laws making the advocacy of abolitionism illegal, and then during the war itself when both sides had to consider what to do about internal critics. Overall, the Union was tolerant of its critics, known as Copperheads, who generally were able to criticise the Lincoln administration without sanction.

In the twentieth century, several landmark cases in the US Supreme Court grappled with the limits of free speech. In 1919, Justice Oliver Wendell Holmes, speaking for a unanimous court, upheld a conviction under the 1917 Espionage Act of a man who circulated an anti-draft leaflet during the war and, in doing so, Holmes uttered his famous line about shouting fire in a theatre. In 1964, the case of New York Times v Sullivan extended First Amendment protection to those who defamed government officials, unless the official could prove that the statement was made with &ldquoactual malice&rdquo. Numerous free-speech issues arose from the threat of communism, particularly in the McCarthy era. At the end of the century, whole new types of hate speech were being assessed for their legality. Yet, as the constitutional historian Michael Kent Curtis commented in 1995:

When they ignore free speech history, advocates of restriction have plenty of company. With a few notable exceptions, American legal education has paid too little attention to either the history of liberty or of free speech. In the past powerful interests have sought to limit speech by use of the bad tendency test, by use of ad hoc balancing, by treating political speech as libel, and by demanding protection from emotional distress caused by speech. From the Sedition Act to the crusade against slavery, to the opposition to wars and the draft, elites have advanced such doctrines as justifications for suppression of speech, including political speech.

Of course, the debate about freedom of speech is not just about political speech. In the third quarter of the twentieth century a lot of the debate about free speech in many countries related to the removal of censorship of previously banned works, in England most famously relating to D.H. Lawrence&rsquos novel Lady Chatterley&rsquos Lover. On the fiftieth anniversary of the 1960 trial Geoffrey Robertson wrote that of all Old Bailey trials &ldquonone has had such profound social and political consequences as the trial in 1960 of Penguin Books for publishing Lady Chatterley&rsquos Lover&rdquo:

The verdict was a crucial step towards the freedom of the written word, at least for works of literary merit (works of no literary merit were not safe until the trial of Oz in 1971, and works of demerit had to await the acquittal of Inside Linda Lovelace in 1977).

Australia followed a similar pattern to England and the United States, with greater controls being legislated in the 1880s, and then a similar path towards liberalisation of censorship laws in the 1960s, particularly in the period of the Gorton government when Don Chipp was Minister for Customs and Excise. Chipp removed the existing bans on many novels and allowed the sale of Playboy magazine. He also oversaw the introduction of the R certificate for films in 1970, which allowed previously banned films to be shown to adults. Yet, as Peter Coleman explained in his landmark history of the topic, Obscenity, Blasphemy, Sedition , Australia had a much longer history of control of political speech, &ldquoarriving in effect with the first printing press&rdquo.

However, the First World War was the catalyst for increasing censorship and when the Hughes government lost its wartime powers it beefed up the Customs Act to keep out subversive political works. This manner of control via Customs reached its apogee in 1933-34 when well over 100 political books freely circulating in Britain were banned in Australia. As in the United States, the threat of communism created much of the freedom-of-speech controversy in the middle decades of the twentieth century in Australia. One of the most celebrated cases was that of the Czech communist writer Egon Kisch, who was refused permission to enter the country by the Lyons government in 1934. The government tried to declare him a prohibited immigrant because he failed a dictation test in Scottish Gaelic, but this was subsequently ruled invalid. As so often happens, the move to silence Kisch only added to his celebrity. The Australian Dictionary of Biography sums up the situation:

While relatively few Australians had any sympathy for communists, the &ldquoKisch Affair&rdquo created widespread fears that, by using the Immigration Act to curtail free speech, the government was resorting to tactics similar to those undermining democracy in Europe.

Robert Menzies, who was the Attorney-General in the Lyons government at the time of the Kisch affair, tried unsuccessfully as Prime Minister in the early 1950s to ban the Communist Party.

Also in the Menzies era, the federal parliament took the extraordinary step of summoning the editor and publisher of the Bankstown Observer before the Bar of the House to defend a charge that they had breached parliamentary privilege by publishing an article alleging that a member of parliament was involved in an immigration racket. The parliament voted overwhelmingly to incarcerate both men and they ended up spending three months in Goulburn jail. Frank Browne provided an eloquent defence of his position, when he addressed the House, placing the parliamentarians&rsquo actions in an historical context:

I say that, if this Parliament establishes a precedent and takes the right of punishment into its own hands, the rights that have been fought for since 1215, and even before, are seriously endangered. The right of free speech is endangered.

Fortunately, while Browne was right about the threat that the parliament&rsquos action posed to free speech, it has not established a precedent, at least not a direct one.

Yet journalists themselves have not always been paragons of virtue when it comes to free speech. The 1970s and 1980s saw attempts by sections of their profession, particularly in Britain, to make journalism a closed shop. At Barnsley in Yorkshire in 1977 some members of the National Union of Journalists tried to ensure that representatives of other unions did not provide information to non-union journalists. In the same year, printing unions tried to prevent the publication of articles they considered anti-union.

The same article which reported these threats to freedom of speech actually felt 1977 had been &ldquothe best year for free speech since Queen Victoria grudgingly accepted the abolition of the newspaper stamp tax in 1853&rdquo, on the basis that an election in India had enabled 600 million Indians to again read uncensored newspapers. There have regularly been wins and losses in the battle for freedom of speech.

So, while in Australia 2011 was a bad year for free speech, at least the debate about it might lead to a greater understanding of the issues involved. A good place to start would be getting recognition that fighting for freedom of speech has meant fighting for freedom from state control, not using the state as umpire to regulate speech to some communally accepted standard. The ability to verbally attack one&rsquos rulers, and other citizens with whom one disagrees, is the product of almost three millennia of thought and struggle by advocates of the most basic human freedom. Their efforts need to be defended as vigorously as possible.

Richard Allsop is a Research Fellow at the Institute of Public Affairs.


Watch the video: Thomas Healey: History Of Free Speech In America (January 2022).