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 author: "John Milton"
 image: /img/john-milton.jpg
 era: "Early Modern"
 topic: "Free Speech"
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 title: "Contractarian Free Speech"
 author: "Alan Haworth"
 image: /img/alan-haworth.jpg
 era: "Twentieth Century"
 topic: "Free Speech"
 draft: false
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 *The following excerpt is from, [“Free Speech”](https://www.amazon.co.uk/Free-Speech-Problems-Philosophy-Haworth/dp/0415148057/ref=sr_1_1?s=books&ie=UTF8&qid=1545954721&sr=1-1&keywords=free+speech+routledge+haworth), by Alan Haworth*
 **Free Speech From The Contract**
 [Given John Rawls’ rational choice theory, and the veil of ignorance thought experiment, from *A Theory of Justice*]… we are… faced with the following question: would a group of rational choosers, who are constrained to coexist and who are negotiating from the standpoint of an appropriately constructed original position, include a free speech principle amongst the fundamental elements of their constitution? I shall argue that, for all contractualism’s initial promise, an attempt to construct a contractualist defence of free speech must ultimately fail because it requires making too many ad hoc presuppositions*…*
 FREE SPEECH AS A ‘BASIC LIBERTY’
 Unlike Mill’s On Liberty, which contains a whole chapter devoted entirely to the defence of {{< newtab title="‘the liberty of thought and discussion’," url="/reading/on-liberty-of-thought-and-discussion/" >}} Rawls’s *A Theory of Justice* offers no independent defence of free speech per se. Instead, free speech is treated as one item in a package of ‘basic liberties’. These are listed by Rawls as,
 > *roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. These liberties are all required to be equal by the first principle, since citizens of a just society are to have the same basic rights.*
 >
 > (Rawls 1972:61)
 From our perspective, the passage’s most striking feature is that Rawls’s list actually contains two distinct items, each of which might reasonably be included in the category ‘free speech’ on purely first-glance grounds. One is the freedom Rawls explicitly calls ‘freedom of speech’. Note that this is placed, without reservation, in the same class as ‘political liberty (the right to vote and to be eligible for public office)’ and freedom of assembly. So, here Rawls is making a direct connection between free speech and the democratic decision-making system. The other basic liberty is a liberty also defended by Mill, namely ‘freedom of thought’. Note that this latter freedom is classified together with ‘freedom of conscience’ and—further—that ‘freedom of conscience’ is defined by Rawls as ‘religious and moral freedom’ or the freedom to honour one’s ‘religious or moral obligations’ (ibid.:206).
 Rawls’s idea that there is a package of basic liberties clearly raises the question why treat those liberties as basic—the ones on the list—and not some other set? In answer, Rawls offers an argument for ‘liberty of conscience’ which, or so he claims, ‘can be generalised to other freedoms, although not always with the same force’ (ibid.). So here is another striking point: although Rawls lists a number of basic liberties, his rationale for including them on the list is founded on a single argument. That argument runs as follows: first, Rawls imagines his rational choosers having to decide ‘which principle they should adopt to regulate the liberties of citizens in regard to their fundamental, religious, moral, and philosophical interests’. He then writes,
 > Now it seems that equal liberty of conscience is the only principle that the persons in the original position can acknowledge. They cannot take chances with their liberty by permitting the dominant religious or moral doctrine to persecute or to suppress others if it wishes. Even granted (what may be questioned) that it is more probable than not that one will turn out to belong to the majority (if a majority exists) to gamble in this way would show that one did not take one’s religious or moral convictions seriously, or highly value the liberty to examine one’s beliefs. Nor on the other hand, could the parties consent to the principle of utility. In this case their freedom would be subject to the calculus of social interests and they would be authorising its restriction if this would lead to a greater net balance of satisfaction.
 >
 > (Ibid.:207)
 There are two observations on the general character of Rawls’s procedure to be made here. The first is that it is unsurprising that Rawls should rely so heavily on an argument which centres upon people’s unwillingness to ‘take chances’, for it forcibly reflects his contractualist scenario with the latter’s emphasis on the necessity for cooperation. The point is this: whatever cooperation’s advantages may be, it is more than likely that there will be some things which are so important to you that you will not be prepared to abandon them under any circumstances. That is just plain common sense. Your confidential diaries, your toothbrush; these are things you will want to secure in a locker marked ‘personal’. As for your ‘religious or moral convictions’, even your diaries and your toothbrush must pale into insignificance besides these. If they don’t then, as Rawls remarks, your convictions can’t be serious.
 The second observation is that Rawls is following some traditional routes. He is by no means the first to connect freedom of speech with the democratic process. Nor is he alone in modelling free speech on the liberty of conscience. Mill does much the same, as we have seen. At least, he does in the sense that his ‘classic’ case for the liberty of thought and discussion began life, in earlier hands (such as Milton’s), as an argument for religious toleration. To generalise, there is no doubt that the earlier debate over toleration in religion is the direct ancestor of the modern argument about free speech, or that it was in the later half of the seventeenth century that the former began to mutate into the latter; (just as On Liberty can claim an ancestor in {{< newtab title="Milton’s Areopagitica," url="/reading/areopagitica/" >}} so can Rawls’s argument for freedom of speech and liberty of conscience in {{< newtab title="Locke’s A Letter Concerning Toleration" url="/reading/locke-on-toleration-of-religious-difference" >}})…. So, by according conceptual priority to liberty of conscience Rawls’s argument carries a certain echo of the historical sequence…
 FREE SPEECH AND LIBERTY OF CONSCIENCE
 …‘Liberty of conscience’ is Rawls’s phrase for the liberty to express deeply held beliefs, especially religious beliefs (including atheism). It is, thus, roughly equivalent to the freedom more usually referred to as ‘religious liberty’. This raises the question is liberty of conscience a good model for free speech? There are some good reasons for thinking that it is not, and I shall mention three.
 The first is that although language frequently plays a crucial role within the context of religion and religious practice it is not a role from which one can generalise to other areas in which language figures. For an obvious case in point, take prayer—talking to God or some other supernatural being. Prayer is crucial to much religious practice, but so far as I can see it is not an activity from which one can generalise to other uses of language, particularly those uses which one might conceivably want to protect with a free speech principle. It is worth recalling some of the features which, as I pointed out some time ago, characteristically tend to distinguish religious belief from other forms of belief. There is, first, the fact that a religious belief tends to be more or less exclusive to a specific identifiable group—the Muslims, the Christians, the Southern Baptists—and, second, there is the fact that, in order to hold it, it tends to be the case that you must also hold other, related, beliefs which are also exclusive to the groups. It is this which distinguishes a religious belief from, say, a scientific belief. The latter is related to other beliefs, standards of proof, and so on, which are more diffusely spread…. It seems that features typical of religious belief are atypical of beliefs in general. This casts doubt on the possibility of generalising from a defence of the liberty to hold and express them to all beliefs.
 The second reason for thinking that liberty of conscience is not a good model for free speech is that—again characteristically and on the whole—a religion is more than just a belief system. In religion, the belief system is—typically—just part of a complex to which participation in various forms of activity—including non-linguistic activity—is equally crucial. The periodic ritual, the pilgrimage, the observance of holy days and holy places, of fasts, all these can be constitutive of a religion too. To have a religion is, thus, quite usually, to have a certain way of life. Again, it is not obvious that an argument defending the right to exercise speech within the context of a way of life can be generalised to cover freedoms one might want to protect with a free speech principle. The point is related to my third reason for rejecting liberty of conscience as a model for free speech generally. This is that if Rawls has a good argument for religious tolerance in a world of diverse and conflicting belief it is because choosers strike a posture which is fundamentally defensive. (They want to protect those things with which they are not prepared to ‘take chances’.) (Rawls 1972:207). We should note that in this respect he is continuing a liberal tradition which is also exemplified by—for example—Mill’s famous ‘sphere of action’ passage. As you will recall, Mill wrote that ‘There is a sphere of action in which society, as distinguished from the individual, has if any, only an indirect interest’. And he went on to add that the sphere comprises, amongst other things, ‘liberty of conscience in the most comprehensive sense’ (Mill 1859:1, §12). Similarly, Rawls’s choosers erect a defensive palisade.
 Now, the question is whether Rawls’s argument for liberty of conscience can be generalised to an argument for free speech. I don’t think it can. Consider the following example. An investigative journalist has come across information which will seriously compromise an important public figure. Suppose that he is challenged for a reason why he should be left free to publicise the material and to continue with his investigation and that—by analogy with Rawls’s argument—the reason he gives for being left unhindered is ‘because it is supremely important to me that I be left to get on with it’. Plainly, he has not offered a good justification for the freedom of the press to publish the results of investigative journalism. Quite the contrary; by equating his activities with self-expression he seems to have reduced their significance. Of course, it could be that, in the case of this journalist, his activities form an important part of his self-development, his self-expression, and so on—the same could be true for his religion—but all that is beside the point. In this sort of case it is right to expect a justification in terms of an activity’s public function, its relation to ‘the public interest’, for example; that is, not with an argument paralleling Rawls’s for liberty of conscience.
 Or again, take intellectual activity in the pursuit of truth, as defended by Mill with his argument for ‘the liberty of thought and discussion’. In parallel with Rawls’s argument for the protection of ‘fundamental religious, moral, and philosophical interests’ one can —I suppose—portray this as a set of activities in which those who wish to should be left free to engage. However, if Mill is right, this would be to miss the point, because the point lies in the activity’s effects; that is, in the benefits it yields for humanity generally. Recall, too, that (as it transpired from our earlier discussion of Mill) Mill’s argument is not so much false as more limited in its range of application than it is often assumed to be. It is beginning to look as if something similar is true in Rawls’s case…
 CONCLUSIONS
 …Let us now take stock of the direction this argument is taking… the flaws I have identified in Rawls’s argument are not specific to Rawls’s first book. On the contrary, they have their sources in features of the contractualist stance itself. Any contractualist derivation of a right to free speech must encounter parallel difficulties, and *A Theory of Justice* provides just one illustration of how they arise…
 …consider the feature to which I have just been referring, that Rawls’s choosers negotiate from positions which are fundamentally defensive. This flows quite naturally from some basic contractualist assumptions. There are two, the first being that the choosers have differing plans, purposes, and value systems. This assumption is basic in the sense that new wave contractualism—Rawlsian and post-Rawlsian—derives much of its point from this assumption of an irreducible difference between individual ‘conceptions of the good’, with its logical consequence that the choosers will not automatically agree to some given set of principles, as they might in an Anarchist Utopia. The second basic assumption is that the choosers are not completely altruistic. From this it follows that every individual will want to make provision for those things he or she will want to protect whatever the preferences expressed by the others may be. As I put it earlier, there has to be a locker for you—one marked ‘personal’—ready to take such items as your toothbrush, your personal diary, and your ‘fundamental religious, moral, and philosophical interests’. To derive a right to free speech from these assumptions all you need to add is an argument to show how that right serves to defend whatever it is you want to put in the locker. It follows—as a first conclusion—that any contractualist derivation of free speech—not just Rawls’s —must prioritise that liberty’s defensive functions and relegate others to the background….
 …it is true enough that there has to be some relationship of representation between the hypothetical rational choosers in their hypothetical situation and ourselves in our own. (I have already argued the point at some length.) However, there must also be differences. If there were none, there would be no point in telling the hypothetical story. You might just as well cut it out and concentrate on what real people would (or should) choose in a real situation. In the argument of *A Theory of Justice*, the difference is one of perspective and it results, in turn, from ignorance on the part of the choosers. As Rawls insists, ‘No one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength’ …and so on (Rawls 1972:137). The imposition of this ‘veil of ignorance’ is meant to ensure that the parties ‘evaluate principles solely on the basis of general considerations’ (ibid.). According to Rawls they must if his argument is to mirror the main contours of the concept of justice, and—as I am sure is very well known—it is from behind it that they select his two basic principles.
 Now, the problem I am thinking of arises because complete ignorance makes any sort of choice impossible. Suppose you are told that you have a choice between two alternatives, A and B, but that you are given no further information. All you know is that A and B are there to be chosen between. In such a situation, it is obvious that no real choice is possible. At the very least you need to know what sorts of things A and B are—varieties of pizza, election candidates, principles of justice—and, depending on the example, it is very likely that you will need to know more than that. It follows that, however hypothetical a ‘contract’ story may be, some knowledge must be built in to the argument. Sure enough, in his derivation of the two principles Rawls satisfies this requirement by granting his choosers a bare minimum of relevant information. Thus, although no one knows ‘his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk’ (ibid.), everyone knows that he or she will have some ‘rational plan of life’ and some sort of attitude to risk. Again, although ‘no one knows his place in society, his class position or social status’ (ibid.), everyone knows that he or she will occupy some place in society and, indeed, that there is a probability of finding himself or herself amongst the least advantaged. They are even granted knowledge of politics, economics, and psychology. Even so, this is not granting everything, and there is still theoretical work for ignorance to do. The choosers are not permitted to know ‘how the various alternatives will affect their own particular case’, and are consequently obliged to evaluate principles solely on the basis of general considerations’ (ibid.: 136– 7). Rawls’s claim that, ‘the theory of the good used in arguing for the principles of justice is restricted to the bare essentials’ (ibid.: 396) is, I think, perfectly credible.
 But deriving principles which operate at a fairly high level of abstraction is one thing. It is not necessarily so easy to move from there to the more concrete and specific. As we have seen, that is what Rawls wants to do. In other words he wants to move from the derivation of his principles to the justification of a specifically liberal value system. This is instantiated by, for example, his argument for the basic liberties, ‘roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought’, and the rest (ibid.: 61). I suggest that, where this sort of attempt to move from the relatively abstract to the relatively specific is made, two things are guaranteed to happen. The first is that the hypothetical ‘rational-choice’ scenario will lose its grip. This is bound to happen because there won’t usually be much by way of a strict analogy between the hypothetical scenario and the real-life contexts to which the specifically liberal value system is meant to apply. The latter will lack the former’s formalistic, game-like structure. We have seen this instantiated in Rawls’s attempt to use his ‘choice’ story to link freedom of speech with the democratic process. There, the hypothetical scenario drops the more out of account, the less the exercise of free speech is construed on the model of voting (which is, at least, a structured, game-like procedure). The second is that the real work will be done, instead, by an appeal to (actual or supposed) contingent fact. We have also seen this process at work in Rawls’s more ‘realistic’ arguments that free speech is a basic liberty; for example, in his argument that democracy requires free speech because it requires a ‘public forum’ (ibid.: 225). The rational choice element in the argument is, thus, increasingly sidelined.
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 title: "Does the Constitution Protect Free Speech?"
 author: "Herbert Goodrich"
 image: /img/herbert-goodrich.jpg
 era: "Twentieth Century"
 topic: "Free Speech"
 draft: false
 ---
 *The following is a [paper published in the Michigan Law Review, in 1921](https://www.jstor.org/stable/1276931). It provides excellent commentary and context on Holme’s “clear and present danger” standard, the effect of the Espionage Act on the First Amendment, and the general mood of the court, at the end of the First World War.*
 **Does The Constitution Protect Free Speech?**
 MANY thoughtful men and women, witnessing the suppression of speech, by means both judicial and extra-judicial, in the period through which we have just passed, have reluctantly concluded that our hard won right of freedom of speech has been lost, swept away in the flood tide of war enthusiasm. They point to the example of the recent candidate for the presidency, Eugene Debs, who is still confined in a federal prison for words he uttered during the war. They call attention to the fact that the fate of Mr. Debs is no worse than that of scores of other persons, members of his and other minority groups, who have gone to jail since April, 1917, for giving utterance to unpopular opinions. Finally, they show us a widespread wave of “anti-disturbance” legislation among our legislatures during and immediately after the war.
 Things have now quieted down. We no longer jump with apprehension at hearing the word “Bolshevist.” Attention is turning to the multitude of questions arising out of our return to a *de facto* if not a *de jure*, state of peace. In the meantime, our federal Supreme Court has had occasion, in cases arising under the **Espionage Act**, to give us some authoritative expositions of the legal meaning of that freedom of speech guaranteed by our Constitution. It seems desirable to see how far these decisions have taken us in setting out the limits of lawful speech, before our interest is entirely diverted to matters more pressing.
 > “Congress shall make no law… abridging the freedom of speech or of the press.”
 These are the unyielding words of the First Amendment, the first of the federal “Bill of Rights.” Similar provisions are to be found in nearly all State constitutions. Do the words mean, literally,’that neither Congress nor legislature can punish words alone, no matter what they are? A few examples will show that such an absolute conception of the meaning of freedom of speech is untenable. A man might persuade another to murder his enemy, he might defame his neighbor, he might perjure himself on the witness stand, he might induce a soldier to desert his post. Surely, constitutional protection was not meant for him.
 But if a definition of free speech is not to be an absolute one, applicable to all words, what is it to be? So far as the question involves legal rights secured by a constitution, we naturally turn to the decisions of courts of final authority whose function is to interpret the Constitution. The legal significance of many clauses our federal Constitution has been determined in this fashion. The “commerce clause,” by which the Congress was given authority to regulate interstate commerce, and the “due process of law” clause of the Fourteenth Amendment are examples which readily suggest themselves.
 With the free speech provision we have no such help. The Supreme Court has said that the Bill of Rights in the Constitution was designed simply to embody certain general guaranties inherited from English ancestors, which had always been subject to certain well-defined exceptions arising from necessity. So the free speech clause does not prevent the exclusion of lottery tickets or obscene matter from the mails; neither does it privilege words interfering with pending proceedings in a court of justice. No doubt we may safely say that speech which would be a common law tort or crime is still a basis of liability despite a free speech clause. But until the recent cases under the war-time Espionage Act came before the Supreme Court there was little to mark out for us what the limits of free speech are. Standard treatises on constitutional law devote little space to a discussion of the First Amendment, and their authors had little on which to base such discussion. **The Sedition Act of 1798** made it a criminal offense to publish false matter against “*either house of the Congress of the United States or the president of the United States with intent to bring them or either of them into contempt or disrepute.*” There were convictions under this act shocking to one’s sense of justice, but it expired by its own limitation before Chief Justice Marshall reached the Supreme Bench, and before the court had announced its authority to declare an act of Congress unconstitutional. Good authority, Jefferson included, believed the law in conflict with the Constitution. Again, in 1861, an act punished conspiracy to levy war against the United States, but nothing decided under it gives an authoritative exposition of the right of free speech.
 Of more than usual interest, then, are the cases which our Supreme Court has decided under the recent **Espionage Act**. Not all decisions are worthy of notice here, for some of them went off on technical points. Others are very important. As might be expected, some of them have been the subject of hot controversy. The brilliant dissent of Mr. Justice Holmes in the famous **Abrams v. United States** case, of which more hereafter, was called by different (and differing) writers in one of our best legal periodicals “*shocking in its obtuse indifference to the vital issues at stake in August, 1918, and… ominous in its portent of like indifference to pending and coming issues,*“‘ and “*a literary and judicial classic*” the courageous language of which “*saves from pessimism those who still have faith in our Bill of rights.*“
 **The Espionage Act** was passed by Congress June 15, I917. Title One, Section Three of this statute made it a crime, while the United States is at war, (1) to make false statements with intent to interfere with the operation of our fighting forces; (2) to cause or attempt to cause disloyalty or insubordination in army or navy; (3) willfully to obstruct or attempt to obstruct recruiting. In I918 the list of crimes was greatly enlarged to reach “*individual disloyal utterances.*” Nine more offenses were added. Such prosecutions as have been passed upon in the Supreme Court decisions have not, however, brought the broader prohibitions of the amended act under its scrutiny. It cannot be said on authority, for instance, whether “*abusive language about… the uniform of the Army of the United States*” (one of the crimes under the amended act), spoken by a perspiring second lieutenant on a sticky August day about his leather puttees, is given immunity by the free speech clause Constitution or not. But while the cases decided by the Supreme Court under this statute by no means give us a complete text-book on free speech, they are worth noticing somewhat in detail, for they are the most important authority we have.
 **Schenck v. United States** affirmed the conviction of Schenck, general secretary of the Socialist party, for conspiracy to cause and attempt to cause insubordination in the military forces and to obstruct enlistment service. Schenck was found to have been instrumental in sending out a circular, which attacked the conscription act, to men who had been called and accepted for military service. From the reported decision it appears that the defendant did not deny that the jury could have found the circular was intended to induce drafted men to obstruct the operation of the selective service law.
 Mr. Justice Holmes, delivering the unanimous opinion of the court, made clear two points: first, the right of free speech, under which Schenck claimed immunity, is not an absolute and unchanging thing. War does make a difference. “*When a nation is at war many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight.*” Where the lawmaking body may draw the line we are not told; this question was not before the court. The defense seems to have admitted that Congress could lawfully penalize interference with fighting forces. The only question then was, how far could the law go in punishing a conspiracy for attempting to interfere?
 The second important thing done in this decision is to lay down a test of liability for speech:
 > “*The question in every case is whether the words are used in such circumstances and are of such a nature as to create **a clear and present danger** that they will bring about the substantive evils that Congress had a right to prevent.*“
 >
 > 249 US 47, 39 Sup. Ct. Rep. 2
 This is very important; the liability is not to be found in the general effect of the words, nor in what may be thought to be their dangerous tendency. Instead, the test is similar to the common law liability for attempt to commit a crime — the act done by the wrongdoer must have come dangerously near to success. “Success” in this instance would be the substantive evil specified by Congress in the statute, interference with fighting forces of the country in war-time.
 In two other cases the same month, March, I919, the unanimous court, again through Mr. Justice Holmes, reiterated the same criterion of “clear and present danger,” in affirming the conviction of Frohwerk, of the Missouri Staats-Zeitung (**Frohwerk v. United States**), and that of Eugene Debs (**Debs v. United States**). The Debs case has been unpopular in some quarters on ground that the accused was convicted merely because the jury thought the speech, upon which the charges against him were based, had perhaps some general tendency (as distinguished from a clear and present danger) to bring about resistance to the draft. Whether or not that is the fact, the Supreme Court does not change its first statement of the law governing liability for speech.
 In November, I919, was decided the case of **Abrams v. United States**[,](https://en.wikipedia.org/wiki/Abrams_v._United_States) probably the most widely known of all the Espionage cases, the conduct of which has provoked much adverse discussion. The defendants in this case had prepared and distributed circulars for the purpose of opposing participation by the United States in the campaign against the Bolshevik government. The circulars were abusive of the president, denounced an alleged union of capitalism and militarism in the allied nations, and made the stock appeal to the workers for a general strike as a reply to, the “barbaric intervention”. The defendants were convicted under the amended Espionage Act, and the conviction affirmed by a divided Supreme Court, Justices Holmes and Brandeis dissenting. Despite the fact that the judges disagreed, it is difficult to put a finger on the exact difference between majority and minority as to the law. The dissenters urged that there was no evidence on which a jury of reasonable men could find against the defendants. “*The surreptitious publishing of a silly leaflet an unknown man*” could not present any immediate danger of interference with the success of government arms, thought the minority. The majority opinion spends little time in discussing the law, seeming to assume constitutional points settled by the previous cases already mentioned. It denounces the conduct of the defendants and deems the evidence sufficient to sustain their conviction. Professor Chafee’s able discussion of the history of the case makes one believe that great injustice has been done the individuals condemned to spend the best part of their lives in jail. But the majority’s opinion does not write that injustice into the law, at least so far as the language goes. It might as well have been a memorandum decision affirming the conviction, for all the help it gives in defining constitutional limits of free speech. The dissent of Mr. Justice Holmes, whether right or wrong in his view of the facts, is a fine expression of pragmatic legal philosophy and well deserves to be called “a literary and judicial classic.” It has been widely quoted, but it is eloquent enough to deserve repetition of an excerpt which is worth several readings:
 > “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. 1 Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loath and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful pressing purposes of the law that an immediate check is required to save the country… Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, ‘*Congress shall make no law abridging the freedom of speech*.’… I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of rights under the Constitution of the United States.”
 In March, I920, we have the last two important Espionage decisions. In each, Justices Holmes and Brandeis dissent. The first case, that of **Schaefer v. United States**, affirmed the conviction of officers of an obscure Pennsylvania concern publishing a weak little German newspaper. Again the majority opinion discusses facts for the most part. Mr. Justice McKenna, speaking for the majority of the court, says that when free speech or any right “*becomes wrong by excess is somewhat elusive of definition*,” and he does not tell us where he will draw the line. Mr. Justice Brandeis reemphasizes the “clear and present danger” criterion of liability, and the majority do not dispute his test.
 It seems to the writer that the last case decided, **Pierce v. United States**[,](https://supreme.justia.com/cases/federal/us/252/239/) March 8, 1920. is the most important decision since the Schenck case, the first under the act. It was a particularly striking one on its facts, and even a reading of the decision of the majority of the court, which sustained the conviction of the defendants, makes one feel that the punishing of the prisoners was very harsh.
 The act done by the defendants was the distribution of a pamphlet sent out from Socialist headquarters to the Albany, New York, “local” for distribution. When the literature first arrived the question of its distribution was brought up, and acting on the advice of a lawyer member, the Albany group voted to postpone their circulation of the matter until the outcome of a Maryland prosecution involving the same pamphlet, was determined. The Maryland judge ordered an acquittal of the defendants in the prosecution before him. It seemed safe, therefore, to go ahead in Albany, and this was done. But the distributors were arrested there, a jury readily convicted them, and their conviction was affirmed by the Supreme Court.
 The literature which brought these men to grief was a four-page leaflet written by Irvin St. John Tucker, an Episcopal clergyman, who, as Mr. Justice Brandeis points out, was a man of sufficient prominence to have been included in “Who’s Who in America” for 1916-1917. The pamphlet pictured the horrors of the war, though not more vividly than some of the descriptions and pictures that a benevolent censor permitted to come before our eyes from official sources. It argued that the misery depicted was the logical outcome of the refusal of the people to accept Socialism. It called attention to rising food prices, stated that “*The attorney general of the United States is so busy sending to prison men who do not stand up when ‘The Star-Spangled Banner’ is played that he has no time to protect the food supply from gamblers.*” Though no harsher than charges made by opponents since, this must have been a sore point with the prosecution, for it was felt necessary to show that civilians were not compelled by law to stand when the National Anthem was played.
 Injustice may have been done the particular individuals involved. That is a question that could only be fairly passed upon after examination of the whole record of the case in upper and lower courts. Even then opinions might well differ. But it seems to the writer that the decision is important because the majority opinion, this time through the very able Mr. Justice Pitney, adopts the doctrines technically known as “indirect causation” and “constructive intent” as a source of liability. If the majority of the court does adopt them, then the decision is most important and the Espionage Act has become a most effective silencer of all but the most polite discussion for all war-time periods until it is repealed.
 The doctrines mentioned are of long standing, but for a hundred and twenty years had not been applied in the United States. Their meaning can be easily explained. Admit that the evil the statute is aimed to prevent is one regarding which Congress has power to exercise preventive measures, causing insubordination in the army, for instance. What words come within the penalty of the law? May all speech which might be said to have some tendency, however remote, to bring about acts in violation of law be punished, or only words which directly incite to acts in violation of law? Suppose that a man criticizes army food, do not his words have some tendency, at least in the mind of a jury with a strong imagination and in thorough sympathy with the war, to cause unrest and subsequent insubordination among soldiers? And it wouldn’t matter, would it, whether the words were said directly to a soldier, or to a woman’s club some of whose members had relatives or friends in the army? Under this doctrine of “indirect causation” words can be punished for supposed bad tendency long before the probability arises that they will break into unlawful acts. It is obvious that this test of liability is in sharp contrast with the “clear and present danger” rule of Mr. Justice Holmes. It has far-reaching consequences. What about the man who denounces an excess profits tax bill? Do not his words have a tendency to encourage another to violate the law? What of the Arizona statesman who is reported to have said that if the United States Government gave Caranza permission to take troops through his State he hoped the people would prevent their passage. Did his words not have a “tendency” to provoke violence? Any person of influence who expresses an opinion in some way remotely encourages another to act in accordance with the opinion expressed.
 Hand in hand with this “indirect causation” doctrine goes that of “constructive intent.” The only intent the defendant must have is intent to write or speak the words he did. If the words have a bad tendency we will presume the man intended unlawful consequences, on the ground that he is presumed to intend the consequences of his acts. Now we have many places in the law where a man is liable for consequences even when he did not specifically intend them. If he shot off a gun at random in a crowded and killed someone, he certainly could not escape punishment by saying he didn’t intend to kill his victim. We can say that he is presumed to intend the natural consequence of his act, which is pure fiction. We may accurately say that specific intent to hit the very person he did is not by law required in order to hold him liable. But often crimes do require a specific intent, and if they do, such intent must be proved. When a penal statute such as the Espionage Act, makes certain speech a crime, such as advocating curtailment of production of things necessary to to the prosecution of the war, “*with intent… to hinder… the United States in the prosecution of the war,*” must not the words in their literal sense? To go back to the answer of Mr. Holmes in the Abrams case:
 > “They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success; yet even if it turned out that the curtailment hindered the United States in the prosecution of the war, no one would hold such conduct a crime.”
 “Constructive intent” and “indirect causation” had appeared in lower federal court decisions under the Espionage Act. Does the Supreme Court adopt them in the Pierce case? Says Mr. Justice Pitney:
 > “Whether the statements contained in the pamphlets had a natural tendency to produce the forbidden consequences… was a question to be determined… by the jury… It was shown without dispute that the defendants distributed the pamphlet — ‘The Price We Pay’ — with full understanding of its contents; and this of itself furnished a ground for attributing to them an intent to bring about… any and all such consequences as reasonably might be anticipated from its distribution.”
 If the majority of our highest court are applying the “indirect causation” and “constructive intent” tests as a basis for liability under the Espionage Act, we have an easy explanation for the division of that body through the group of decisions beginning with the Abrams case.
 This ends the discussion of the constitutional right of free speech by our highest court. We probably shall have no more light upon it from this source in the immediate future.
 In determining what is the final effect of these adjudications on the law of free speech, we should bear in mind the following: (I) That the Espionage Act is a war-time statute, and the court has emphasized a difference between the limits of speech in war and peace; (2) If the majority of the court has adopted the “indirect causation” and “constructive intent” doctrines they have not in so many words squarely overruled the Schenck case with its criterion of “clear and present danger” and told the minority that they were doing so, and why; (3) At subsequent time the disagreements in the cases may be explained as pertaining to the facts only and the minority’s exposition of the law may be taken as the doctrine court.
 Finally, may we not be skeptical whether, in this present era of “social” thought and outlook, the right of the minority to say what it pleases will get the vigorous protection against the majority’s desire to dictate what shall be said that it would have received in days when individualistic notions were stronger? The recalcitrant minority is being compelled constantly to subject itself to many restrictions upon its liberty in doing acts heretofore considered perfectly lawful. The one time sacred right of freedom of contract is fettered in every motion. Laws regulate hours of labor, working conditions, the people one may hire, the minimum wage he is allowed to pay, the damages he must give for industrial accidents. One is told where he may build an apartment house and where he may not. His children must be vaccinated, inspected, and psychologically tested before they can go to school. If he is a venereal suspect he is rushed willy nilly to a hospital for inspection and treatment. **Purchase of intoxicants is prevented by a constitutional amendment;** even the buying of the innocuous “Camel” or “Fatima” [cigarettes] involves a breach of the law in many States. All of this in the name of protection to society — as interpreted by the majority.
 Courts are upholding such “social” legislation with increasing sympathy, which is what we wish them to do. The majority opinion in **Lochner v. New York**, the New York bakers’ case, seems a long way off. But will not the same kind of argument and the same line of thought which upholds a law which restricts a man in the contracts he may make, or limits him in the use to which he may lawfully put his real estate, uphold a law limiting the exercise tongue when the majority so wills it?
 Granted the question of freedom of speech is one of social values, will not the advocates of free speech, as the champions of minimum wage laws, have to convince their fellow citizens that their cause is righteous, that the benefits outweigh the dangers, that justice, fair play, and the common good demand that every side, no matter how unpopular, be given a hearing in the public’s forum? Reverting to Mr. Justice Holmes again, “*The best test of truth is the power of the thought to get itself accepted in the competition of the market.*” There is the place where the battle for restriction of freedom of contract has been won. If unrestricted speech cannot win in the same field, we shall probably have to get along without it.
 \~~~
 **1.** This thought is too much for Dean Wigmore to stomach, and in his discussion in 14 ILL. Law Rev., on p. 561, he sets it out in capitals with an abundance of exclamation points. He says: “…when found publicly recorded in an opinion of the Supreme Guardians of that Constitution, licensing propaganda which in the next case before the court may be directed against that Constitution itself, this language is ominous indeed.” Does Dean Wigmore mean that our Constitution is the last step possible in the evolution of government, and hence above criticism?
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 title: "Free Speech From Property Rights"
 author: "Murray Rothbard"
 image: /img/rothbard.jpg
 era: "Twentieth Century"
 topic: "Free Speech"
 draft: false
 ---
 *This excerpt is from Chapter 6 of, [“For A New Liberty: The Libertarian Manifesto”](https://mises.org/library/new-liberty-libertarian-manifesto), By Murray Rothbard*
 **Personal Liberty, Property Rights, and Free Speech**
 There are, of course, many problems of personal liberty which cannot be subsumed under the category of “involuntary servitude.” Freedom of speech and press have long been treasured by those who confine themselves to being “civil libertarians”—”civil” meaning that economic freedom and the rights of private property are left out of the equation. But we have already seen that “freedom of speech” cannot be upheld as an absolute except as it is subsumed under the general rights of property of the individual (emphatically *including* property right in his own person). Thus, the man who shouts “fire” in a crowded theater has no right to do so because he is aggressing against the contractual property rights of the theater owner and of the patrons of the performance.
 Aside from invasions of property, however, freedom of speech will necessarily be upheld to the uttermost by every libertarian. Freedom to say, print, and sell any utterance becomes an absolute right, in whatever area the speech or expression chooses to cover. Here, civil libertarians have a generally good record, and in the judiciary the late Justice Hugo Black was particularly notable in defending freedom of speech from government restriction on the basis of the First Amendment of the Constitution.
 But there are areas in which even the most ardent civil libertarians have been unfortunately fuzzy. What, for example, of “incitement to riot,” in which the speaker is held guilty of a crime for whipping up a mob, which then riots and commits various actions and crimes against person and property? In our view, “incitement” can only be considered a crime if we deny every man’s freedom of will and of choice, and assume that if *A* tells *B* and *C*: “You and him go ahead and riot!” that somehow *B* and *C* are then helplessly determined to proceed and commit the wrongful act. But the libertarian, who believes in freedom of the will, must insist that while it might be immoral or unfortunate for *A* to advocate a riot, that this is strictly in the realm of advocacy and should not be subject to legal penalty. Of course, if *A* also participates in the riot, then he himself becomes a rioter and is equally subject to punishment. Furthermore, if *A* is a boss in a criminal enterprise, and, as part of the crime, orders his henchmen: “You and him go and rob such and such a bank,” then of course *A,* according to the law of accessories, becomes a participant or even leader in the criminal enterprise itself.
 If advocacy should never be a crime, then neither should“conspiracy to advocate,” for, in contrast to the unfortunatedevelopment of conspiracy law, “conspiring” (i.e., agreeing)to do something should never be more illegal than the actitself. (How, in fact, can “conspiracy” be defined except as anagreement by two or more people to do something that you,the definer, do not like?) [^1]
 Another difficult zone is the law of libel and slander. It has generally been held legitimate to restrict freedom of speech if that speech has the effect of either falsely or maliciously dam-aging the reputation of another person. What the law of libel and slander does, in short, is to argue a “property right” of someone in his own reputation. Yet someone’s “reputation” is not and cannot be “owned” by him, since it is purely a function of the subjective feelings and attitudes held by other people. But since no one can ever truly “own the mind and attitude of another, this means that no one can literally have a property right in his “reputation.” A person’s reputation fluctuates all the time, in accordance with the attitudes and opinions of the rest of the population. Hence, speech attacking someone cannot be an invasion of his property right and therefore should not be subject to restriction or legal penalty.
 It is, of course, immoral to level false charges against another person, but once again, the *moral* and the *legal* are, for the libertarian, two very different categories.
 Furthermore, pragmatically, if there were no laws of libel or slander, people would be much less willing to credit charges without full documentation than they are now. Nowadays, if a man is charged with some flaw or misdeed, the general reaction is to believe it, since if the charge were false, “Why doesn’t he sue for libel?” The law of libel, of course, discriminates in this way against the poor, since a person with few financial resources is scarcely as ready to carry on a costly libel suit as a person of affluent means. Furthermore, wealthy people can now use the libel laws as a club against poorer per-sons, restricting perfectly legitimate charges and utterances under the threat of suing their poorer enemies for libel. Paradoxically, then, a person of limited resources is more apt to suffer from libel—and to have his own speech restricted—in the present system than he would in a world without any laws against libel or defamation.
 Fortunately, in recent years the laws against libel have been progressively weakened, so that one can now deliver vigorous and trenchant criticisms of public officials and of people in the public eye without fear of being subject to costly legal action or legal punishment.
 Another action that should be completely free of restriction is the boycott. In a boycott, one or more people use their right of speech to urge, for whatever reasons—important or trivial—that other people cease to buy someone else’s product.
 If, for example, several people organize a campaign—for whatever reason—to urge consumers to stop buying XYZ Beer, this is again purely advocacy, and, furthermore, advocacy of a perfectly legitimate act—*not* purchasing the beer. A successful boycott might be unfortunate for the producers of XYZ Beer, but this, again, is strictly within the realm of free speech and the rights of private property. The makers of XYZ Beer take their chances with the free choices of consumers, and consumers are entitled to listen and to be swayed by any-one they choose. Yet our labor laws have infringed upon the right of labor unions to organize boycotts against business firms. It is also illegal, under our banking laws, to spread rumors about the insolvency of a bank—an obvious case of the government’s extending special privileges to banks by outlawing freedom of speech in opposition to their use.
 A particularly thorny question is the whole matter of picketing and demonstrations. Freedom of speech implies, of course, freedom of assembly—the freedom to gather together and express oneself in concert with others. But the situation becomes more complex when the use of the *streets* is involved.It is clear that picketing is illegitimate when it is used—as it often is—to block access to a private building or factory, or when the pickets threaten violence against those who cross the picket line. It is also clear that sit-ins are an illegitimate invasion of private property. But even “peaceful picketing” is not clearly legitimate, for it is part of a wider problem: Who decides on the use of the streets? The problem stems from the fact that the streets are almost universally owned by (local)government. But the government, not being a private owner, lacks any criterion for allocating the use of its streets, so that any decision it makes will be arbitrary.
 Suppose, for example, that the Friends of Wisteria wish to demonstrate and parade on behalf of Wisteria in a public street. The police ban the demonstration, claiming that it will clog the streets and disrupt traffic. Civil libertarians will automatically protest and claim that the “right of free speech” of the Wisteria demonstrators is being unjustly abridged. But the police, too, may have a perfectly legitimate point: the streets may well be clogged, and it is the government’s responsibility to maintain the flow of traffic. How then decide? Whichever way the government decides, *some* group of taxpayers will be injured by the decision. If the government decides to allow the demonstration, the motorists or pedestrians will be injured; if it does not, then the Friends of Wisteria will suffer a loss. In either case, the very fact of government decision-making generates inevitable conflict over who shall, and who shall not among the taxpayers and citizens, use the governmental resource.
 It is only the universal fact of government ownership and control of the streets that makes this problem insoluble and cloaks the true solution to it. The point is that *whoever* owns a resource will decide on how that resource is to be used. The owner of a press will decide what will be printed on that press. And the owner of the streets will decide how to allocate their use. In short, if the streets were privately owned and the Friends of Wisteria asked for the use of Fifth Avenue to demonstrate, it will be up to the owner of Fifth Avenue to decide whether to rent the street for demonstration use or to keep it clear for traffic. In a purely libertarian world, where all streets are privately owned, the various street owners will decide, at any given time, whether to rent out the street for demonstrations, whom to rent it to, and what price to charge. It would then be clear that what is involved is not a “free speech” or “free assembly” question at all, but a question of property rights: of the right of a group to offer to rent a street, and of the right of the street owner either to accept or reject the offer.
 FREEDOM OF RADIO AND TELEVISION
 There is one important area of American life where no effective freedom of speech or the press does or can exist under the present system. That is the entire field of radio and television. In this area, the federal government, in the crucially important Radio Act of 1927, nationalized the airwaves. In effect, the federal government took title to ownership of all radio and television channels. It then presumed to grant licenses, at its will or pleasure, for use of the channels to various privately owned stations. On the one hand, the stations, since they receive the licenses gratis, do not have to pay for the use of the scarce airwaves, as they would on the free market.And so these stations receive a huge subsidy, which they are eager to maintain. But on the other hand, the federal government, as the licensor of the airwaves, asserts the right and the power to regulate the stations minutely and continuously.Thus, over the head of each station is the club of the threat of non-renewal, or even suspension, of its license. In consequence, the idea of freedom of speech in radio and television is no more than a mockery. Every station is grievously restricted, and forced to fashion its programming to the dictates of the Federal Communications Commission. So every station must have “balanced” programming, broadcast a certain amount of “public service” announcements, grant equal time to every political candidate for the same office and to expressions of political opinion, censor “controversial” lyrics in the records it plays, etc. For many years, no station was allowed to broadcast any editorial opinion at all; now, every opinion must be balanced by “responsible” editorial rebuttals. Because every station and every broadcaster must always look over its shoulder at the FCC, free expression in broadcasting is a sham. Is it any wonder that television opinion, when it is expressed at all on controversial issues, tends to be blandly in favor of the “Establishment”?
 The public has only put up with this situation because it has existed since the beginning of large-scale commercial radio. But what would we think, for example, if all newspapers were licensed, the licenses to be renewable by a FederalPress Commission, and with newspapers losing their licenses if they dare express an “unfair” editorial opinion, or if they don’t give full weight to public service announcements? Would not this be an intolerable, not to say unconstitutional, destruction of the right to a free press? Or consider if all book publishers had to be licensed, and their licenses were not renewable if their book lists failed to suit a Federal Book Com-mission? Yet what we would all consider intolerable and totalitarian for the press and the book publishers is taken for granted in a medium which is now the most popular vehicle for expression and education: radio and television. Yet the principles in both cases are exactly the same.
 Here we see, too, one of the fatal flaws in the idea of “democratic socialism,” i.e., the idea that the government should own all resources and means of production yet preserve and maintain freedom of speech and the press for all its citizens.An abstract constitution guaranteeing “freedom of the press”is meaningless in a socialist society. The point is that where the government owns all the newsprint, the paper, the presses, etc., the government—as owner—*must* decide how to allocate the newsprint and the paper, and what to print on them. Justas the government as street owner must make a decision how the street will be used, so a socialist government will have to decide how to allocate newsprint and all other resources involved in the areas of speech and press: assembly halls, machines, trucks, etc. Any government may profess its devotion to freedom of the press, yet allocate all of its newsprint only to its defenders and supporters. A free press is again a mockery; furthermore, why *should* a socialist government allocate any considerable amount of its scarce resources to anti-socialists? The problem of genuine freedom of the press then becomes insoluble.
 The solution for radio and television? Simple: Treat these media precisely the same way the press and book publishers are treated. For both the libertarian and the believer in theAmerican Constitution the government should withdraw completely from any role or interference in all media of expression. In short, the federal government should denationalize the airwaves and give or sell the individual channels to private ownership. When private stations genuinely own their channels, they will be truly free and independent; they will be able to put on any programs they wish to produce, or that they feel their listeners want to hear; and they will be able to express themselves in whichever way they wish without fear of government retaliation. They will also be able to sell or rent the airwaves to whomever they wish, and in that way the users of the channels will no longer be artificially subsidized.
 Furthermore, if TV channels become free, privately owned, and independent, the big networks will no longer be able to put pressure upon the FCC to outlaw the effective com-petition of pay-television. It is only because the FCC has out-lawed pay-TV that it has not been able to gain a foothold.“Free TV” is, of course, not truly “free”; the programs are paid for by the advertisers, and the consumer pays by covering the advertising costs in the price of the product he buys. One might ask what difference it makes to the consumer whether he pays the advertising costs indirectly or pays directly foreach program he buys. The difference is that these are not the same consumers for the same products. The television advertiser, for example, is always interested in (a) gaining the widest possible viewing market; and (b) in gaining those *particular* viewers who will be most susceptible to his message.Hence, the programs will all be geared to the lowest common denominator in the audience, and particularly to those viewers most susceptible to the message; that is, those viewers who do not read newspapers or magazines, so that the message will not duplicate the ads he sees there. As a result, free-TV programs tend to be unimaginative, bland, and uniform. Pay-TV would mean that each program would search for its own market, and many specialized markets for specialized audiences would develop—just as highly lucrative specialized markets have developed in the magazine and book publishing fields. The quality of programs would be higher and the offerings far more diverse. In fact, the menace of potential pay-TV competition must be great for the networks to lobby for years to keep it suppressed. But, of course, in a truly free market, both forms of television, as well as cable-TV and other forms we cannot yet envision, could and would enter the competition.
 One common argument against private ownership of TV channels is that these channels are “scarce,” and therefore have to be owned and parceled out by the government. To an economist, this is a silly argument; *all* resources are scarce, in fact anything that has a price on the market commands that price precisely *because* it is scarce. We have to pay a certain amount for a loaf of bread, for shoes, for dresses *because* they are all scarce. If they were not scarce but superabundant like air, they would be free, and no one would have to worry about their production or allocation. In the press area, newsprint is scarce, paper is scarce, printing machinery and trucks are scarce, etc. The more scarce they are the higher the price they will command, and vice versa. Furthermore, and again pragmatically, there are far more television channels available than are now in use. The FCC’s early decision to force stations into the VHF instead of the UHF zone created far more of a scarcity of channels than there needed to be.
 Another common objection to private property in the broadcast media is that private stations would interfere with each other’s broadcasts, and that such widespread interference would virtually prevent any programs from being heard or seen. But this is as absurd an argument for nationalizing the airwaves as claiming that since people *can* drive their cars over other people’s land this means that all cars—or land—must be nationalized. The problem, in either case, is for the courts to demarcate property titles carefully enough so that any invasion of another’s property will be clear-cut and subject to prosecution. In the case of land titles, this process is clear enough. But the point is that the courts can apply a similar process of staking out property rights in other areas—whether it be in airwaves, in water, or in oil pools. In the case of airwaves, the task is to find the technological unit—i.e., the place of transmission, the distance of the wave, and the technological width of a clear channel—and then to allocate property rights to this particular technological unit. If radio stationWXYZ, for example, is assigned a property right in broadcasting on 1500 kilocycles, plus or minus a certain width of kilo-cycles, for 200 miles around Detroit, then any station which subsequently beams a program into the Detroit area on this wavelength would be subject to prosecution for interference with property rights. If the courts pursue their task of demarking and defending property rights, then there is no more reason to expect continual invasions of such rights in this area than anywhere else.
 Most people believe that this is precisely the reason the airwaves were nationalized; that before the Radio Act of 1927, stations interfered with each other’s signals and chaos ensued, and the federal government was finally forced to step in to bring order and make a radio industry feasible at last. But this is historical legend, not fact. The actual history is *precisely the opposite*. For when interference on the same channel began to occur, the injured party took the airwave aggressors into court, and the courts were beginning to bring order out of the chaos by very successfully applying the common law theory of property rights—in very many ways similar to the libertarian theory—to this new technological area. In short, the courts were beginning to assign property rights in the airwaves to their “homesteading” users. It was after the federal government saw the likelihood of this new extension of private property that it rushed in to nationalize the airwaves, using alleged chaos as the excuse.
 To describe the picture a bit more fully, radio in the first years of the century was almost wholly a means of communication for ships—either ship-to-ship or ship-to-shore messages. The Navy Department was interested in regulating radio as a means of ensuring safety at sea, and the initial federal regulation, a 1912 act, merely provided that any radio station had to have a license issued by the Secretary of Commerce. No powers to regulate or to decide not to renew licenses were written into the law, however, and when public broadcasting began in the early 1920s, Secretary of CommerceHerbert Hoover attempted to regulate the stations. Court deci-sions in 1923 and 1926, however, struck down the government’s power to regulate licenses, to fail to renew them, or even to decide on which wavelengths the stations should operate. [^2] At about the same time, the courts were working out the concept of “homestead” private property rights in the airwaves, notably in the case of *Tribune Co. v. Oak Leaves Broadcasting Station* (Circuit Court, Cook County, Illinois, 1926). In this case the court held that the operator of an existing station had a property right, acquired by prior use, sufficient to enjoin anew station from using a radio frequency in any way so as to cause interference with the signals of the prior station. [^3] And so order was being brought out of the chaos by means of the assignment of property rights. But it was precisely this development that the government rushed in to forestall.
 The 1926 Zenith decision striking down the government’s power to regulate or to fail to renew licenses, and forcing theDepartment of Commerce to issue licenses to any station that applied, produced a great boom in the broadcasting industry.Over two hundred new stations were created in the nine months after the decision. As a result, Congress rushed through a stopgap measure in July 1926 to *prevent* any property rights in radio frequencies, and resolved that all licenses should be limited to 90 days. By February 1927 the Congress passed the law establishing the Federal Radio Commission, which nationalized the airwaves and established powers similar to those of the current FCC. That the aim of the knowledgeable politicians was *not* to prevent chaos but to prevent private property in the airwaves as the solution to chaos is demonstrated by the legal historian H.P. Warner. Warner states that “grave fears were expressed by legislators, and those generally charged with the administration of communications… that government regulation of an effective sort might be permanently prevented through the accrual of property rights in licenses or means of access, and that thus franchises of the value of millions of dollars might be established for all time.” [^4] The net result, however, was to establish equally valuable franchises anyway, but in a monopolistic fashion through the largesse of the Federal Radio Commission and later FCC rather than through competitive homesteading.
 Among the numerous direct invasions of freedom of speech exercised by the licensing power of the FRC and FCC, two cases will suffice. One was in 1931, when the FRC denied renewal of license to a Mr. Baker, who operated a radio station in Iowa. In denying renewal, the Commission said:
 > This Commission holds no brief for the Medical Associations and other parties whom Mr. Baker does not like. Their alleged sins may be at times of public importance, to be called to the attention of the public over the air in the right way. But this record discloses that Mr. Baker does not do so in any high-minded way. It shows that he continually and erratically over the air rides a personal hobby, his cancer cure ideas and his likes and dislikes of certain persons and things. Surely his infliction of all this on the listeners is not the proper use of a broadcasting license. Many of his utterances are vulgar, if not indeed indecent. Assuredly they are not uplifting or entertaining. [^5]
 Can we imagine the outcry if the federal government were to put a newspaper or a book publisher out of business on similar grounds?
 A recent act of the FCC was to threaten non-renewal of license of radio station KTRG in Honolulu, a major radio station in Hawaii. KTRG had been broadcasting libertarian programs for several hours a day for approximately two years. Finally, in late 1970, the FCC decided to open lengthy hearings moving toward non-renewal of license, the threatened cost of which forced the owners to shut down the station permanently. [^6]
 [^1]: For a critique of the “clear and present danger” criterion as insufficient for drawing a clear line between advocacy and overt act, see Alexander Meiklejohn, *Political Freedom* (New York: Harper and Bros., 1960), pp.29–50; and O. John Rogge, *The First and the Fifth* (New York: ThomasNelson and Sons, 1960), pp. 88ff.
 [^2]: In the decisions *Hoover v. Intercity Radio Co.*, 286 Fed. 1003 (AppealsD.C., 1923); and *United States v. Zenith Radio Corp.*, 12 F. 2d 614 (ND. Ill.,1926). See the excellent article by Ronald H. Coase, “The Federal Communications Commission,” *Journal of Law and Economics* (October 1959):4–5.
 [^3]: Ibid., p. 31n.
 [^4]: Harry P. Warner, *Radio and Television Law* (1958), p. 540. Quoted in Coase, “The Federal Communications Commission,” p. 32.
 [^5]: Decisions of the FRC, Docket No. 967, June 5, 1931. Quoted in Coase, “The Federal Communications Commission,” p. 9.
 [^6]: The best and most fully elaborated portrayal of how private property rights could be assigned in radio and television is in A. DeVany et al., “A Property System for Market Allocation of the Electromagnetic Spectrum: A Legal-Economic-Engineering Study,” *Stanford Law Review* (June 1969). See also William H. Meckling, “National Communications Policy: Discussion,” *American Economic Review, Papers and Proceedings* (May 1970): 222–23. Since the DeVany article, the growth of community.
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-title: "On Toleration of Religious Difference"
+title: "On the Toleration of Religious Difference"
 author: "John Locke"
 image: /img/locke-with-curly-hair.jpg
 era: "Early Modern"
 topic: "Free Speech"
 draft: false
 ---
 This is an excerpt from “A Letter Concerning Toleration”, by John Locke
--- a/content/reading/on-liberty-of-thought-and-discussion.md
+++ b/content/reading/on-liberty-of-thought-and-discussion.md
@ -0,0 +1,40 @@
 ---
 title: "On the Liberty of Thought and Discussion"
 author: "John Stuart Mill"
 image: /img/jsmill.jpg
 era: "Early Modern"
 topic: "Free Speech"
 draft: false
 ---
 *The following is an excerpt from chapter two of John Stuart Mill’s ‘On Liberty’.*
 ***On The Liberty of Thought and Discussion\***
 THE TIME, IT IS TO BE HOPED, IS GONE BY WHEN ANY DEFENCE WOULD be necessary of the “liberty of the press” as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. This aspect of the question, besides, has been so often and so triumphantly enforced by preceding writers, that it needs not be specially insisted on in this place. Though the law of England, on the subject of the press, is as servile to this day as it was in the time of the Tudors, there is little danger of its being actually put in force against political discussion, except during some temporary panic, when fear of insurrection drives ministers and judges from their propriety; and, speaking generally, it is not, in constitutional countries, to be apprehended that the government, whether completely responsible to the people or not, will often attempt to control the expression of opinion, except when in doing so it makes itself the organ of the general intolerance of the public. Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best government has no more title to it than the worst. It is as noxious, or more noxious, when exerted in accordance with public opinion, than when in opposition to it. If all mankind minus one, were of one opinion, 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. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
 It is necessary to consider separately these two hypotheses, each of which has a distinct branch of the argument corresponding to it. We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.
 First: the opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common.
 Unfortunately for the good sense of mankind, the fact of their fallibility is far from carrying the weight in their practical judgment, which is always allowed to it in theory; for while every one well knows himself to be fallible, few think it necessary to take any precautions against their own fallibility, or admit the supposition that any opinion of which they feel very certain, may be one of the examples of the error to which they acknowledge themselves to be liable. Absolute princes, or others who are accustomed to unlimited deference, usually feel this complete confidence in their own opinions on nearly all subjects. People more happily situated, who sometimes hear their opinions disputed, and are not wholly unused to be set right when they are wrong, place the same unbounded reliance only on such of their opinions as are shared by all who surround them, or to whom they habitually defer: for in proportion to a man’s want of confidence in his own solitary judgment, does he usually repose, with implicit trust, on the infallibility of “the world” in general. And the world, to each individual, means the part of it with which he comes in contact; his party, his sect, his church, his class of society: the man may be called, by comparison, almost liberal and large-minded to whom it means anything so comprehensive as his own country or his own age. Nor is his faith in this collective authority at all shaken by his being aware that other ages, countries, sects, churches, classes, and parties have thought, and even now think, the exact reverse. He devolves upon his own world the responsibility of being in the right against the dissentient worlds of other people; and it never troubles him that mere accident has decided which of these numerous worlds is the object of his reliance, and that the same causes which make him a Churchman in London, would have made him a Buddhist or a Confucian in Pekin. Yet it is as evident in itself as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.
 The objection likely to be made to this argument, would probably take some such form as the following. There is no greater assumption of infallibility in forbidding the propagation of error, than in any other thing which is done by public authority on its own judgment and responsibility. Judgment is given to men that they may use it. Because it may be used erroneously, are men to be told that they ought not to use it at all? To prohibit what they think pernicious, is not claiming exemption from error, but fulfilling the duty incumbent on them, although fallible, of acting on their conscientious conviction. If we were never to act on our opinions, because those opinions may be wrong, we should leave all our interests uncared for, and all our duties unperformed. An objection which applies to all conduct can be no valid objection to any conduct in particular.
 It is the duty of governments, and of individuals, to form the truest opinions they can; to form them carefully, and never impose them upon others unless they are quite sure of being right. But when they are sure (such reasoners may say), it is not conscientiousness but cowardice to shrink from acting on their opinions, and allow doctrines which they honestly think dangerous to the welfare of mankind, either in this life or in another, to be scattered abroad without restraint, because other people, in less enlightened times, have persecuted opinions now believed to be true. Let us take care, it may be said, not to make the same mistake: but governments and nations have made mistakes in other things, which are not denied to be fit subjects for the exercise of authority: they have laid on bad taxes, made unjust wars. Ought we therefore to lay on no taxes, and, under whatever provocation, make no wars? Men, and governments, must act to the best of their ability. There is no such thing as absolute certainty, but there is assurance sufficient for the purposes of human life. We may, and must, assume our opinion to be true for the guidance of our own conduct: and it is assuming no more when we forbid bad men to pervert society by the propagation of opinions which we regard as false and pernicious.
 I answer, that it is assuming very much more. There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.
 When we consider either the history of opinion, or the ordinary conduct of human life, to what is it to be ascribed that the one and the other are no worse than they are? Not certainly to the inherent force of the human understanding; for, on any matter not self-evident, there are ninety-nine persons totally incapable of judging of it, for one who is capable; and the capacity of the hundredth person is only comparative; for the majority of the eminent men of every past generation held many opinions now known to be erroneous, and did or approved numerous things which no one will now justify. Why is it, then, that there is on the whole a preponderance among mankind of rational opinions and rational conduct? If there really is this preponderance—which there must be, unless human affairs are, and have always been, in an almost desperate state— it is owing to a quality of the human mind, the source of everything respectable in man, either as an intellectual or as a moral being, namely, that his errors are corrigible. He is capable of rectifying his mistakes by discussion and experience. Not by experience alone. There must be discussion, to show how experience is to be interpreted. Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it. Very few facts are able to tell their own story, without comments to bring out their meaning. The whole strength and value, then, of human judgment, depending on the one property, that it can be set right when it is wrong, reliance can be placed on it only when the means of setting it right are kept constantly at hand. In the case of any person whose judgment is really deserving of confidence, how has it become so? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and expound to himself, and upon occasion to others, the fallacy of what was fallacious. Because he has felt, that the only way in which a human being can make some approach to knowing the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be looked at by every character of mind. No wise man ever acquired his wisdom in any mode but this; nor is it in the nature of human intellect to become wise in any other manner. The steady habit of correcting and completing his own opinion by collating it with those of others, so far from causing doubt and hesitation in carrying it into practice, is the only stable foundation for a just reliance on it: for, being cognizant of all that can, at least obviously, be said against him, and having taken up his position against all gainsayers knowing that he has sought for objections and difficulties, instead of avoiding them, and has shut out no light which can be thrown upon the subject from any quarter—he has a right to think his judgment better than that of any person, or any multitude, who have not gone through a similar process.
 It is not too much to require that what the wisest of mankind, those who are best entitled to trust their own judgment, find necessary to warrant their relying on it, should be submitted to by that miscellaneous collection of a few wise and many foolish individuals, called the public. The most intolerant of churches, the Roman Catholic Church, even at the canonization of a saint, admits, and listens patiently to, a “devil’s advocate.” The holiest of men, it appears, cannot be admitted to posthumous honors, until all that the devil could say against him is known and weighed. If even the Newtonian philosophy were not permitted to be questioned, mankind could not feel as complete assurance of its truth as they now do. The beliefs which we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded. If the challenge is not accepted, or is accepted and the attempt fails, we are far enough from certainty still; but we have done the best that the existing state of human reason admits of; we have neglected nothing that could give the truth a chance of reaching us: if the lists are kept open, we may hope that if there be a better truth, it will be found when the human mind is capable of receiving it; and in the meantime we may rely on having attained such approach to truth, as is possible in our own day. This is the amount of certainty attainable by a fallible being, and this the sole way of attaining it.
 Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being “pushed to an extreme;” not seeing that unless the reasons are good for an extreme case, they are not good for any case. Strange that they should imagine that they are not assuming infallibility when they acknowledge that there should be free discussion on all subjects which can possibly be doubtful, but think that some particular principle or doctrine should be forbidden to be questioned because it is so certain, that is, because they are certain that it is certain. To call any proposition certain, while there is any one who would deny its certainty if permitted, but who is not permitted, is to assume that we ourselves, and those who agree with us, are the judges of certainty, and judges without hearing the other side.
 In the present age—which has been described as “destitute of faith, but terrified at scepticism,”—in which people feel sure, not so much that their opinions are true, as that they should not know what to do without them—the claims of an opinion to be protected from public attack are rested not so much on its truth, as on its importance to society. There are, it is alleged, certain beliefs, so useful, not to say indispensable to well-being, that it is as much the duty of governments to uphold those beliefs, as to protect any other of the interests of society. In a case of such necessity, and so directly in the line of their duty, something less than infallibility may, it is maintained, warrant, and even bind, governments, to act on their own opinion, confirmed by the general opinion of mankind. It is also often argued, and still oftener thought, that none but bad men would desire to weaken these salutary beliefs; and there can be nothing wrong, it is thought, in restraining bad men, and prohibiting what only such men would wish to practise. This mode of thinking makes the justification of restraints on discussion not a question of the truth of doctrines, but of their usefulness; and flatters itself by that means to escape the responsibility of claiming to be an infallible judge of opinions. But those who thus satisfy themselves, do not perceive that the assumption of infallibility is merely shifted from one point to another. The usefulness of an opinion is itself matter of opinion: as disputable, as open to discussion and requiring discussion as much, as the opinion itself. There is the same need of an infallible judge of opinions to decide an opinion to be noxious, as to decide it to be false, unless the opinion condemned has full opportunity of defending itself. And it will not do to say that the heretic may be allowed to maintain the utility or harmlessness of his opinion, though forbidden to maintain its truth. The truth of an opinion is part of its utility. If we would know whether or not it is desirable that a proposition should be believed, is it possible to exclude the consideration of whether or not it is true? In the opinion, not of bad men, but of the best men, no belief which is contrary to truth can be really useful: and can you prevent such men from urging that plea, when they are charged with culpability for denying some doctrine which they are told is useful, but which they believe to be false? Those who are on the side of received opinions, never fail to take all possible advantage of this plea; you do not find them handling the question of utility as if it could be completely abstracted from that of truth: on the contrary, it is, above all, because their doctrine is “the truth,” that the knowledge or the belief of it is held to be so indispensable. There can be no fair discussion of the question of usefulness, when an argument so vital may be employed on one side, but not on the other. And in point of fact, when law or public feeling do not permit the truth of an opinion to be disputed, they are just as little tolerant of a denial of its usefulness. The utmost they allow is an extenuation of its absolute necessity or of the positive guilt of rejecting it.
 In order more fully to illustrate the mischief of denying a hearing to opinions because we, in our own judgment, have condemned them, it will be desirable to fix down the discussion to a concrete case; and I choose, by preference, the cases which are least favourable to me—in which the argument against freedom of opinion, both on the score of truth and on that of utility, is considered the strongest. Let the opinions impugned be the belief in a God and in a future state, or any of the commonly received doctrines of morality. To fight the battle on such ground, gives a great advantage to an unfair antagonist; since he will be sure to say (and many who have no desire to be unfair will say it internally), Are these the doctrines which you do not deem sufficiently certain to be taken under the protection of law? Is the belief in a God one of the opinions, to feel sure of which, you hold to be assuming infallibility? But I must be permitted to observe, that it is not the feeling sure of a doctrine (be it what it may) which I call an assumption of infallibility. It is the undertaking to decide that question for others, without allowing them to hear what can be said on the contrary side. And I denounce and reprobate this pretension not the less, if put forth on the side of my most solemn convictions. However positive any one’s persuasion may be, not only of the falsity, but of the pernicious consequences—not only of the pernicious consequences, but (to adopt expressions which I altogether condemn) the immorality and impiety of an opinion; yet if, in pursuance of that private judgment, though backed by the public judgment of his country or his contemporaries, he prevents the opinion from being heard in its defence, he assumes infallibility. And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, this is the case of all others in which it is most fatal. These are exactly the occasions on which the men of one generation commit those dreadful mistakes which excite the astonishment and horror of posterity. It is among such that we find the instances memorable in history, when the arm of the law has been employed to root out the best men and the noblest doctrines; with deplorable success as to the men, though some of the doctrines have survived to be (as if in mockery) invoked, in defence of similar conduct towards those who dissent from them, or from their received interpretation.
 Mankind can hardly be too often reminded, that there was once a man named Socrates, between whom and the legal authorities and public opinion of his time, there took place a memorable collision. Born in an age and country abounding in individual greatness, this man has been handed down to us by those who best knew both him and the age, as the most virtuous man in it; while we know him as the head and prototype of all subsequent teachers of virtue, the source equally of the lofty inspiration of Plato and the judicious utilitarianism of Aristotle, “i maestri di color che sanno,” the two headsprings of ethical as of all other philosophy. This acknowledged master of all the eminent thinkers who have since lived—whose fame, still growing after more than two thousand years, all but outweighs the whole remainder of the names which make his native city illustrious—was put to death by his countrymen, after a judicial conviction, for impiety and immorality. Impiety, in denying the gods recognized by the State; indeed, his accuser asserted (see the “Apologia”) that he believed in no gods at all. Immorality, in being, by his doctrines and instructions, a “corrupter of youth.” Of these charges the tribunal, there is every ground for believing, honestly found him guilty, and condemned the man who probably of all then born had deserved best of mankind, to be put to death as a criminal.
 To pass from this to the only other instance of judicial iniquity, the mention of which, after the condemnation of Socrates, would not be an anti-climax: the event which took place on Calvary rather more than eighteen hundred years ago. The man who left on the memory of those who witnessed his life and conversation, such an impression of his moral grandeur, that eighteen subsequent centuries have done homage to him as the Almighty in person, was ignominiously put to death, as what? As a blasphemer. Men did not merely mistake their benefactor; they mistook him for the exact contrary of what he was, and treated him as that prodigy of impiety, which they themselves are now held to be, for their treatment of him. The feelings with which mankind now regard these lamentable transactions, especially the latter of the two, render them extremely unjust in their judgment of the unhappy actors. These were, to all appearance, not bad men—not worse than men most commonly are, but rather the contrary; men who possessed in a full, or somewhat more than a full measure, the religious, moral, and patriotic feelings of their time and people: the very kind of men who, in all times, our own included, have every chance of passing through life blameless and respected. The high-priest who rent his garments when the words were pronounced, which, according to all the ideas of his country, constituted the blackest guilt, was in all probability quite as sincere in his horror and indignation, as the generality of respectable and pious men now are in the religious and moral sentiments they profess; and most of those who now shudder at his conduct, if they had lived in his time and been born Jews, would have acted precisely as he did. Orthodox Christians who are tempted to think that those who stoned to death the first martyrs must have been worse men than they themselves are, ought to remember that one of those persecutors was Saint Paul.
--- a/content/reading/on-the-freedom-of-speech-and-the-press.md
+++ b/content/reading/on-the-freedom-of-speech-and-the-press.md
@ -0,0 +1,70 @@
 ---
 title: "On the Freedom of Speech and the Press"
 author: "Benjamin Franklin"
 image: /img/benjamin-franklin1.jpg
 era: "Early Modern"
 topic: "Free Speech"
 draft: false
 ---
 ON FREEDOM OF SPEECH AND THE PRESS (Published 1839, Harper & Brothers) [Spellings modernized, and footnotes renumbered to flow independently of the rest of the book]
 Freedom of speech is a principal pillar of a free government: when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the actions of the magistrates; this privilege, in all ages, has been, and always will be, abused. The best of men could not escape the censure and envy of the times they lived in. Yet this evil is not so great as it may appear at first sight. A magistrate who sincerely aims at the good of society will always have the inclinations of a great majority on his side, and an impartial posterity will not fail to render him justice.
 Those abuses of the freedom of speech are the exercises of liberty. They ought to be repressed; but to whom dare we commit the care of doing it? An evil magistrate, entrusted with power to *punish for words*, would be armed with a weapon the most destructive and terrible. Under pretense of pruning off the exuberant branches, he would be apt to destroy the tree.
 It is certain that he who robs another of his moral reputation, more richly merits a gibbet than if he had plundered him of his purse on the highway. *Augustus Cæsar*, under the specious pretext of preserving the character of the Romans from defamation, introduced the law whereby libeling was involved in the penalties of treason against the state. This law established his tyranny; and for one mischief which it prevented, ten thousand evils, horrible and afflicting, sprung up in its place. Thenceforward every person’s life and fortune depended on the vile breath of informers. The construction of words being arbitrary, and left to the decision of the judges, no man could write or open his mouth without being in danger of forfeiting his head.
 One was put to death for inserting in his history the praises of Brutus. Another for styling Cassius the last of the Romans. Caligula valued himself for being a notable dancer; and to deny that he excelled in that manly accomplishment was high treason. This emperor raised his horse, the name of which was *Incitatus*, to the dignity of consul; and though history is silent, I do not question but it was a capital crime to show the least contempt for that high officer of state! Suppose, then, any one had called the prime minister a *stupid animal*, the emperor’s council might argue that the malice of the libel was the more aggravated by its being true, and, consequently, more likely to excite the *family of this illustrious magistrate* to a breach of the peace or to acts of revenge. Such a prosecution would to us appear ridiculous; yet, if we may rely upon tradition, there have been formerly proconsuls in America, though of more malicious dispositions, hardly superior in understanding to the consul *Incitatus*, and who would have thought themselves libeled to be called by their *proper names*.
 *Nero* piqued himself on his fine voice and skill in music: no doubt a laudable ambition! He performed in public, and carried the prize of excellence. It was afterward resolved by all the judges as good law, that whosoever would *insinuate* the least doubt of Nero’s pre-eminence in the *noble art of fiddling* ought to be deemed a traitor to the state.
 By the help of inferences and innuendoes, treasons multiplied in a prodigious manner. Grief was treason: a lady of noble birth was put to death for bewailing the death of her *murdered son*: silence was declared an *overt act* to prove the treasonable purposes of the heart: looks were construed into treason: a serene, open aspect was an evidence that the person was pleased with the calamities that befell the emperor: a severe, thoughtful countenance was urged against the man that wore it as a proof of his plotting against the state: *dreams* were often made capital offenses. A new species of informers went about Rome, insinuating themselves into all companies to fish out their dreams, which the priests (oh nefarious wickedness!) interpreted into high treason. The Romans were so terrified by this strange method of juridical and penal process, that, far from discovering their dreams, they durst not own that they slept. In this terrible situation, when every one had so much cause to fear, even *fear* itself was made a crime. Caligula, when he put his brother to death, gave it as a reason to the Senate that the youth was afraid of being murdered. To be eminent in any virtue, either civil or military, was the greatest crime a man could be guilty of. *O virtutes certissemum exitium.*[^1]
 These were some of the effects of the Roman law against libeling: those of the British kings that aimed at despotic power or the oppression of the subject, continually encouraged prosecutions for words.
 Henry VII., a prince mighty in politics, procured that act to be passed whereby the jurisdiction of the Star Chamber was confirmed and extended. Afterward Empson and Dudley, two voracious dogs of prey, under the protection of this high court, exercised the most merciless acts of oppression. The subjects were terrified from uttering their griefs while they saw the thunder of the Star Chamber pointed at their heads. This caution, however, could not prevent several dangerous tumults and insurrections; for when the tongues of the people are restrained, they commonly discharge their resentments by a more dangerous organ, and break out into open acts of violence.
 During the reign of Henry VIII., a high-spirited monarch! every light expression which happened to displease him was construed by his supple judges into a libel, and sometimes extended to high treason. When Queen Mary, of cruel memory, ascended the throne, the Parliament, in order to raise a *fence* against the violent prosecutions for words, which had rendered the lives, liberties, and properties of all men precarious, and, perhaps, dreading the furious persecuting spirit of this princess, passed an act whereby it was declared, “That if a libeler doth go so high as to libel against king or queen by denunciation, the judges shall lay no greater fine on him than one hundred pounds, with two months’ imprisonment, and no corporeal punishment: neither was this sentence to be passed on him except the accusation was fully proved by two witnesses, who were to produce a certificate of their good demeanor for the credit of their report.”
 This act was confirmed by another, in the seventh year of the reign of Queen Elizabeth; only the penalties were heightened to two hundred pounds and three months’ imprisonment. Notwithstanding she rarely punished invectives, though the malice of the papists was indefatigable in blackening the brightest characters with the most impudent falsehoods, she was often heard to applaud that rescript of *Theodosius*. If any person spoke ill of the emperor through a foolish rashness and inadvertence, it is to be despised; if out of madness, it deserves pity; if from malice and aversion, it calls for mercy.
 Her successor, King James I., was a prince of a quite different genius and disposition; he used to say, that while he had the power of making judges and bishops, *he could have what law and gospel he pleased*. Accordingly, he filled those places with such as prostituted their professions to his notions of prerogative. Among this number, and I hope it is no discredit to the profession of the law, its great oracle, *Sir Edward Coke*, appears. The Star Chamber, which in the time of Elizabeth had gained a good repute, became an intolerable grievance in the reign of this *learned monarch*.
 But it did not arrive at its meridian altitude till Charles I. began to wield the sceptre. As he had formed a design to lay aside parliaments and subvert the popular part of the constitution, he very well knew that the form of government could not be altered without laying a restraint on freedom of speech and the liberty of the press: therefore he issued his royal mandate, under the great seal of England, whereby he commanded his subjects, under pain of his displeasure, not to prescribe to him any time for parliaments. Lord Clarendon, upon this occasion, is pleased to write, “That all men took themselves to be prohibited, under the penalty of censure (the censure of the Star Chamber), which few men cared to incur, so much as to speak of parliaments, or so much as to mention that parliaments were again to be called.”
 The king’s ministers, to let the nation see they were absolutely determined to suppress all freedom of speech, caused a prosecution to be carried on by the attorney general against three members of the House of Commons, for words spoken in that house, Anno 1628. The members pleaded to the information, that expressions in parliament ought only to be examined and punished there. This notwithstanding, *they were all three condemned as disturbers of the state*; one of these gentlemen, Sir John Eliot, was fined two thousand pounds, and sentenced to lie in prison till it was paid. His lady was denied admittance to him, even during his sickness; consequently, his punishment comprehended an additional sentence of divorce. This patriot, having endured many years imprisonment, sunk under the oppression, and died in prison: this was such a wound to the authority and rights of Parliament that, even after the restoration, the judgment was revered by Parliament.
 That Englishmen of all ranks might be effectually intimidated from publishing their thoughts on any subject, except on the side of the court, his majesty’s ministers caused an information, for several libels, to be exhibited in the Star Chamber against Messrs. *Prynn*, *Burton*, and *Bastwick*. They were each of them fined five thousand pounds, and adjudged to lose their ears on the pillory, to be branded on the cheeks with hot irons, and to suffer perpetual imprisonment! Thus these three gentlemen, each of worth and quality in their several professions, viz., divinity, law, and physic, were, for no other offence than writing on controverted points of church government, exposed on public scaffolds, and stigmatized and mutilated as common signal rogues or the most ordinary malefactors.
 Such corporeal punishments, inflicted with all the circumstances of cruelty and infamy, bound down all other gentlemen under a servile fear of like treatment; so that, for several years, no one durst publicly speak or write in defence of the liberties of the people; which the king’s ministers, his privy council, and his judges, had trampled under their feet. The spirit of the administration looked hideous and dreadful; the hate and resentment which the people conceived against it, for a long time lay smothered in their breasts, where those passions festered and grew venomous, and at last discharged themselves by an armed and vindictive hand.
 King Charles II. aimed at the subversion of the government, but concealed his designs under a deep hypocrisy: a method which his predecessor, in the beginning of his reign, scorned to make use of. The father, who affected a high and rigid gravity, discountenanced all barefaced immorality. The son, of a gay, luxurious disposition, openly encouraged it: thus their inclinations being different, the restraint laid on some authors, and the encouragement given to others, were managed after a different manner.
 In this reign a licenser was appointed for the stage and the press; no plays were encouraged but what had a tendency to debase the minds of the people. The original design of comedy was perverted; it appeared in all the shocking circumstances of immodest *double entendre*, obscure description, and lewd representation. Religion was sneered out of countenance, and public spirit ridiculed as an awkward old fashioned virtue; the fine gentleman of the comedy, though embroidered over with wit, was a consummate debauchee; and a fine lady, though set off with a brilliant imagination, was an impudent coquette. Satire, which in the hands of *Horace*, *Juvenal*, and *Boileau*, was pointed with a generous resentment against vice, now became the declared foe of virtue and innocence. As the city of London, in all ages, as well as the time we are now speaking of, was remarkable for its opposition to arbitrary power, the poets leveled all their artillery against the metropolis, in order to bring the citizens into contempt: an alderman was never introduced on the theatre but under the complicated character of a sneaking, canting hypocrite, a miser, and a cuckold; while the court-wits, with impunity, libeled the most valuable part of the nation. Other writers, of a different stamp, with great learning and gravity, endeavored to prove to the English people that slavery was *jure divino*.[^2] Thus the stage
 and the press, under the direction of a licenser, became battering engines against religion, virtue, and liberty. Those who had courage enough to write in their defense, were stigmatized as schismatics, and punished as disturbers of the government.
 But when the embargo on wit was taken off, *Sir Richard Steel* and *Mr. Addison* soon rescued the stage from the load of impurity it labored under with an inimitable address, they strongly recommended to our imitation the most amiable, rational manly characters; and this with so much success that I cannot suppose there is any reader to-day conversant in the writings of those gentlemen, that can taste with any tolerable relish the comedies of the once admired *Shadwell*. Vice was obliged to retire and give place to virtue: this will always be the consequence when truth has fair play: falsehood only dreads the attack, and cries out for auxiliaries: the truth never fears the encounter: she scorns the aid of the secular arm, and triumphs by her natural strength.
 But, to resume the description of the reign of Charles II., the doctrine of servitude was chiefly managed by *Sir Roger Lestrange*. He had great advantages in the argument, being licenser for the press, and might have carried all before him without contradiction, if writings on the other side of the question had not been printed by stealth. The authors, whenever found, were prosecuted as seditious libelers; on all these occasions the king’s counsel, particularly *Sawyer* and *Finch*, appeared most obsequious to accomplish the ends of the court.
 During this *blessed* management, the king had entered into a secret league with France to render himself absolute and enslave his subjects. This fact was discovered to the world by Dr. *Jonathan Swift*, to whom *Sir William Temple* had entrusted the publication of his works.
 *Sidney*, the sworn foe of tyranny, was a gentleman of noble family, of sublime understanding and exalted courage. The ministry were resolved to remove so great an obstacle out of the way of their designs. He was prosecuted for high treason. The overt act charged in the indictment was a libel found in his private study. Mr. Finch, the king’s own solicitor-general, urged with great vehemence to this effect, “that the *imagining* the death of the king is *treason*, even while that imagination remains concealed in the mind, though the law cannot punish such secret treasonable thoughts till it arrives at the knowledge of them by some overt act. That the matter of the libel composed by Sidney was an
 *imagining how to compass the death of King Charles II.*; and the writing of it was an overt act of treason, for that to write was to act. (*Scribere est agere.*)” It seems that the king’s counsel in this reign had not received the same directions as Queen Elizabeth had given hers; she told them they were to look upon themselves as not retained so much (*pro domina regina*, as *pro domina veritate*) for the power of the queen as for the power of truth.
 Mr. Sidney made a strong and legal defense. He insisted that all the words in the book contained no more than general speculations on the principles of government, free for any man to write down; especially since the same are written in the parliament rolls and in the statute laws.
 He argued on the injustice of applying by innuendoes, general assertions concerning principles of government, as overt acts to prove the writer was compassing the death of the king; for then no man could write of things done even by our ancestors, in defense of the constitution and freedom of England, without exposing himself to capital danger.
 He denied that *scribere est agere*, but allowed that writing and publishing is to act (*Scribere et publicare est agere*), and therefore he urged that, as his book had never been published nor imparted to any person, it could not be an overt act, within the statutes of treasons, even admitting that it contained treasonable positions; that, on the contrary, it was a *covert fact*, locked up in his private study, as much concealed from the knowledge of any man as if it were locked up in the author’s mind. This was the substance of Mr. Sidney’s defense: but neither law, nor reason, nor eloquence, nor innocence ever availed where *Jefferies* sat as judge. Without troubling himself with any part of the
 defense, he declared in a rage, that Sidney’s *known principles* were a *sufficient* proof of his intention to compass the death of the king.
 A packed jury therefore found him guilty of high treason: great applications were made for his pardon. He was executed as a traitor.
 This case is a pregnant instance of the danger that attends a law for punishing words, and of the little security the most valuable men have for their lives, in that society where a judge, by remote inferences and distant innuendoes, may construe the most innocent expressions into capital crimes. *Sidney*, the British *Brutus*, the warm, the steady friend of *liberty*; who, from an intrinsic love to mankind, left them that invaluable legacy, his immortal discourses on government, was for these very discourses murdered by the hands of lawless power.
 Upon the whole, to suppress inquiries into the administration is good policy in an arbitrary government; but a free constitution and freedom of speech have such reciprocal dependance on each other, that they cannot subsist without consisting together.
 [^1]: Oh Virtue! The most certain ruin.
 [^2]: By divine right.
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 ---
 title: "On the Liberty of the Press"
 author: "David Hume"
 image: /img/david-hume.jpg
 era: "Early Modern"
 topic: "Free Speech"
 draft: false
 ---
 **The following is from a compilation of essays by David Hume (1711 – 1776),** [**preserved on Gutenberg.org**](https://www.gutenberg.org/files/36120/36120-h/36120-h.htm), and posted here to add to my collection of topical arguments.
 Nothing is more apt to surprise a foreigner, than the extreme liberty which we enjoy in this country of communicating whatever we please to the public and of openly censuring every measure entered into by the king or his ministers. If the administration resolve upon war, it is affirmed, that, either willfully or ignorantly, they mistake the interests of the nation; and that peace, in the present situation of affairs, is infinitely preferable. If the passion of the ministers lie towards peace, our political writers breathe nothing but war and devastation, and represent the specific conduct of the government as mean and pusillanimous. As this liberty is not indulged in any other government, either republican or monarchical; in Holland and Venice, more than in France or Spain; it may very naturally give occasion to the question, *How it happens that Great Britain alone enjoys this peculiar privilege?*
 The reason why the laws indulge us in such a liberty, seems to be derived from our mixed form of government, which is neither wholly monarchical, nor wholly republican. It will be found, if I mistake not, a true observation in politics, that the two extremes in government, liberty and slavery, commonly approach nearest to each other; and that, as you depart from the extremes, and mix a little of monarchy with liberty, the government becomes always the more free; and, on the other hand, when you mix a little of liberty with monarchy, the yoke becomes always the more grievous and intolerable. In a government, such as that of France, which is absolute, and where law, custom, and religion concur, all of them, to make the people fully satisfied with their condition, the monarch cannot entertain any *jealousy* against his subjects, and therefore is apt to indulge them in great *liberties*, both of speech and action. In a government altogether republican, such as that of Holland, where there is no magistrate so eminent as to give *jealousy* to the state, there is no danger in entrusting the magistrates with large discretionary powers; and though many advantages result from such powers, in preserving peace and order, yet they lay a considerable restraint on men’s actions, and make every private citizen pay a great respect to the government. Thus it seems evident, that the two extremes of absolute monarchy and of a republic, approach near to each other in some material circumstances. In the *first*, the magistrate has no jealousy of the people; in the *second*, the people have none of the magistrate: which want of jealousy begets a mutual confidence and trust in both cases, and produces a species of liberty in monarchies, and of arbitrary power in republics.
 To justify the other part of the foregoing observation, that, in every government, the means are most wide of each other, and that the mixtures of monarchy and liberty render the yoke either more grievous; I must take notice of a remark in Tacitus with regard to the Romans under the Emperors, that they neither could bear total slavery nor total liberty, *Nec totam servitutem, nec totam libertatem pati possunt.* This remark a celebrated poet has translated and applied to the English, in his lively description of Queen Elizabeth’s policy and government.
 > Et fit aimer son joug à l’Anglois indompté,
 > Qui ne peut ni servir, ni vivre en liberté.
 >
 > HENRIADE, liv. i.
 According to these remarks, we are to consider the Roman government under the Emperors as a mixture of despotism and liberty, where the despotism prevailed; and the English government as a mixture of the same kind, where the liberty predominates. The consequences are conformable to the foregoing observation, and such as may be expected from those mixed forms of government, which beget a mutual watchfulness and jealousy. The Roman emperors were, many of them, the most frightful tyrants that ever disgraced human nature; and it is evident, that their cruelty was chiefly excited by their *jealousy*, and by their observing that all the great men of Rome bore with impatience the dominion of a family, which, but a little before, was nowise superior to their own. On the other hand, as the republican part of the government prevails in England, though with a great mixture of monarchy, it is obliged, for its own preservation, to maintain a watchful *jealousy* over the magistrates, to remove all discretionary powers, and to secure every one’s life and fortune by general and inflexible laws. No action must be deemed a crime but what the law has plainly determined to be such: no crime must be imputed to a man but from a legal proof before his judges; and even these judges must be his fellow-subjects, who are obliged, by their own interest, to have a watchful eye over the encroachments and violence of the ministers. From these causes it proceeds, that there is as much liberty, and even perhaps licentiousness, in Great Britain, as there were formerly slavery and tyranny in Rome.
 These principles account for the great liberty of the press in these kingdoms, beyond what is indulged in any other government. It is apprehended that arbitrary power would steal in upon us, were we not careful to prevent its progress, and were there not any easy method of conveying the alarm from one end of the kingdom to the other. The spirit of the people must frequently be roused, in order to curb the ambition of the court; and the dread of rousing this spirit must be employed to prevent that ambition. Nothing so effectual to this purpose as the liberty of the press; by which all the learning, wit, and genius of the nation, may be employed on the side of freedom, and every one be animated to its defence. As long, therefore, as the republican part of our government can maintain itself against the monarchical, it will naturally be careful to keep the press open, as of importance to its own preservation. [1]
 It must however be allowed, that the unbounded liberty of the press, though it be difficult, perhaps impossible, to propose a suitable remedy for it, is one of the evils attending those mixed forms of government.
 **~~~**
 [1] Since, therefore, the liberty of the press is so essential to the support of our mixed government, this sufficiently decides the second question, *Whether this liberty be advantageous or prejudicial,* there being nothing of greater importance in every state than the preservation of the ancient government, especially if it be a free one. But I would fain go a step further, and assert, that such a liberty is attended with so few inconveniences, that it may be claimed as the common right of mankind, and ought to be indulged them almost in every government except the ecclesiastical, to which, indeed, it would be fatal. We need not dread from this liberty any such ill consequences as followed from the harangues of the popular demagogues of Athens and Tribunes of Rome. A man reads a book or pamphlet alone and coolly. There is none present from whom he can catch the passion by contagion. He is not hurried away by the force and energy of action. And should he be wrought up to never so seditious a humour, there is no violent resolution presented to him by which he can immediately vent his passion. The liberty of the press, therefore, however abused, can scarce ever excite popular tumults or rebellion. And as to those murmurs or secret discontents it may occasion, it is better they should get vent in words, that they may come to the knowledge of the magistrate before it be too late, in order to his providing a remedy against them. Mankind, it is true, have always a greater propension to believe what is said to the disadvantage of their governors than the contrary; but this inclination is inseparable from them whether they have liberty or not. A whisper may fly as quick, and be as pernicious as a pamphlet. Nay, it will be more pernicious, where men are not accustomed to think freely, or distinguish betwixt truth and falsehood.
 It has also been found, as the experience of mankind increases, that the *people* are no such dangerous monsters as they have been represented, and that it is in every respect better to guide them like rational creatures than to lead or drive them like brute beasts. Before the United Provinces set the example, toleration was deemed incompatible with good government; and it was thought impossible that a number of religious sects could live together in harmony and peace, and have all of them an equal affection to their common country and to each other. *England* has set a like example of civil liberty; and though this liberty seems to occasion some small ferment at present, it has not as yet produced any pernicious effects; and it is to be hoped that men, being every day more accustomed to the free discussion of public affairs, will improve in their judgment of them, and be with greater difficulty seduced by every idle rumour and popular clamour.
 It is a very comfortable reflection to the lovers of liberty, that this peculiar privilege of *Britain* is of a kind that cannot easily be wrested from us, and must last as long as our government remains in any degree free and independent. It is seldom that liberty of any kind is lost all at once. Slavery has so frightful an aspect to men accustomed to freedom, that it must steal in upon them by degrees, and must disguise itself in a thousand shapes in order to be received. But if the liberty of the press ever be lost, it must be lost at once. The general laws against sedition and libelling are at present as strong as they possibly can be made. Nothing can impose a further restraint but either the clapping an imprimatur upon the press, or the giving very large discretionary powers to the court to punish whatever displeases them. But these concessions would be such a barefaced violation of liberty, that they will probably be the last efforts of a despotic government. We may conclude that the liberty of *Britain* is gone for ever when these attempts shall succeed.
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 ---
 title: "On the Public Use of Reason"
 author: "Emmanuel Kant"
 image: /img/young-kant.jpg
 era: "Early Modern"
 topic: "Free Speech"
 draft: false
 ---
 **Excerpted from “An Answer To The Question: What Is Enlightenment”, published 1784**
 ***On The Public Use Of Reason***
 For any single individual to work himself out of the life under tutelage which has become almost his nature is very difficult. He has come to be fond of his state, and he is for the present really incapable of making use of his reason, for no one has ever let him try it out. Statutes and formulas, those mechanical tools of the rational employment or rather misemployment of his natural gifts, are the fetters of an everlasting tutelage. Whoever throws them off makes only an uncertain leap over the narrowest ditch because he is not accustomed to that kind of free motion. Therefore, there are few who have succeeded by their own exercise of mind both in freeing themselves from incompetence and in achieving a steady pace.
 But that the public should enlighten itself is more possible; indeed, if only freedom is granted enlightenment is almost sure to follow. For there will always be some independent thinkers, even among the established guardians of the great masses, who, after throwing off the yoke of tutelage from their own shoulders, will disseminate the spirit of the rational appreciation of both their own worth and every man’s vocation for thinking for himself. But be it noted that the public, which has first been brought under this yoke by their guardians, forces the guardians themselves to remain bound when it is incited to do so by some of the guardians who are themselves capable of some enlightenment – so harmful is it to implant prejudices, for they later take vengeance on their cultivators or on their descendants. Thus the public can only slowly attain enlightenment. Perhaps a fall of personal despotism or of avaricious or tyrannical oppression may be accomplished by revolution, but never a true reform in ways of thinking. Farther, new prejudices will serve as well as old ones to harness the great unthinking masses.
 For this enlightenment, however, nothing is required but freedom, and indeed the most harmless among all the things to which this term can properly be applied. It is the freedom to make public use of one’s reason at every point. But I hear on all sides, “Do not argue!” The Officer says: “Do not argue but drill!” The tax collector: “Do not argue but pay!” The cleric: “Do not argue but believe!” Only one prince in the world says, “Argue as much as you will, and about what you will, but obey!” Everywhere there is restriction on freedom.
 Which restriction is an obstacle to enlightenment, and which is not an obstacle but a promoter of it? I answer: The public use of one’s reason must always be free, and it alone can bring about enlightenment among men. The private use of reason, on the other hand, may often be very narrowly restricted without particularly hindering the progress of enlightenment. By the public use of one’s reason I understand the use which a person makes of it as a scholar before the reading public. Private use I call that which one may make of it in a particular civil post or office which is entrusted to him. Many aﬀairs which are conducted in the interest of the community require a certain mechanism through which some members of the community must passively conduct themselves with an artificial unanimity, so that the government may direct them to public ends, or at least prevent them from destroying those ends. Here argument is certainly not allowed – one must obey. But so far as a part of the mechanism regards himself at the same time as a member of the whole community or of a society of world citizens, and thus in the role of a scholar who addresses the public (in the proper 1 sense of the word) through his writings, he certainly can argue without hurting the aﬀairs for which he is in part responsible as a passive member. Thus it would be ruinous for an officer in service to debate about the suitability or utility of a command given to him by his superior; he must obey. But the right to make remarks on errors in the military service and to lay them before the public for judgment cannot equitably be refused him as a scholar. The citizen cannot refuse to pay the taxes imposed on him; indeed, an impudent complaint at those levied on him can be punished as a scandal (as it could occasion general refractoriness). But the same person nevertheless does not act contrary to his duty as a citizen, when, as a scholar, he publicly expresses his thoughts on the inappropriateness or even the injustices of these levies, Similarly a clergyman is obligated to make his sermon to his pupils in catechism and his congregation conform to the symbol of the church which he serves, for he has been accepted on this condition. But as a scholar he has complete freedom, even the calling, to communicate to the public all his carefully tested and well meaning thoughts on that which is erroneous in the symbol and to make suggestions for the better organization of the religious body and church. In doing this there is nothing that could be laid as a burden on his conscience. For what he teaches as a consequence of his office as a representative of the church, this he considers something about which he has not freedom to teach according to his own lights; it is something which he is appointed to propound at the dictation of and in the name of another. He will say, “Our church teaches this or that; those are the proofs which it adduces.” He thus extracts all practical uses for his congregation from statutes to which he himself would not subscribe with full conviction but to the enunciation of which he can very well pledge himself because it is not impossible that truth lies hidden in them, and, in any case, there is at least nothing in them contradictory to inner religion. For if he believed he had found such in them, he could not conscientiously discharge the duties of his office; he would have to give it up. The use, therefore, which an appointed teacher makes of his reason before his congregation is merely private, because this congregation is only a domestic one (even if it be a large gathering); with respect to it, as a priest, he is not free, nor can he be free, because he carries out the orders of another. But as a scholar, whose writings speak to his public, the world, the clergyman in the public use of his reason enjoys an unlimited freedom to use his own reason to speak in his own person.
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 ---
 title: "On the Social Power Over Liberty of Opinion"
 author: "Alexis de Tocqueville"
 image: /img/tocqueville.jpg
 era: "Early Modern"
 topic: "Free Speech"
 draft: false
 ---
 *The following are extended excerpts from “Democracy In America”, Book Two*
 ***On The Social Power Over Liberty of Opinion In America\***
 I do not say that tyrannical abuses frequently occur in America at the present day, but I maintain that no sure barrier is established against them, and that the causes which mitigate the government are to be found in the circumstances and the manners of the country more than in its laws.
 A distinction must be drawn between tyranny and arbitrary power. Tyranny may be exercised by means of the law, and in that case it is not arbitrary; arbitrary power may be exercised for the good of the community at large, in which case it is not tyrannical. Tyranny usually employs arbitrary means, but, if necessary, it can rule without them.
 In the United States the unbounded power of the majority, which is favorable to the legal despotism of the legislature, is likewise favorable to the arbitrary authority of the magistrate. The majority has an entire control over the law when it is made and when it is executed; and as it possesses an equal authority over those who are in power and the community at large, it considers public officers as its passive agents, and readily confides the task of serving its designs to their vigilance. The details of their office and the privileges which they are to enjoy are rarely defined beforehand; but the majority treats them as a master does his servants when they are always at work in his sight, and he has the power of directing or reprimanding them at every instant.
 In general the American functionaries are far more independent than the French civil officers within the sphere which is prescribed to them. Sometimes, even, they are allowed by the popular authority to exceed those bounds; and as they are protected by the opinion, and backed by the co-operation, of the majority, they venture upon such manifestations of their power as astonish a European. By this means habits are formed in the heart of a free country which may some day prove fatal to its liberties.
 In America, when the majority has once irrevocably decided a question, all discussion ceases – Reason of this – Moral power exercised by the majority upon opinion – Democratic republics have deprived despotism of its physical instruments – Their despotism sways the minds of men.
 It is in the examination of the display of public opinion in the United States that we clearly perceive how far the power of the majority surpasses all the powers with which we are acquainted in Europe. Intellectual principles exercise an influence which is so invisible, and often so inappreciable, that they baffle the toils of oppression. At the present time the most absolute monarchs in Europe are unable to prevent certain notions, which are opposed to their authority, from circulating in secret throughout their dominions, and even in their courts. Such is not the case in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, a submissive silence is observed, and the friends, as well as the opponents, of the measure unite in assenting to its propriety. The reason of this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands, and to conquer all opposition with the energy of a majority which is invested with the right of making and of executing the laws.
 The authority of a king is purely physical, and it controls the actions of the subject without subduing his private will; but the majority possesses a power which is physical and moral at the same time; it acts upon the will as well as upon the actions of men, and it represses not only all contest, but all controversy. I know no country in which there is so little true independence of mind and freedom of discussion as in America. In any constitutional state in Europe every sort of religious and political theory may be advocated and propagated abroad; for there is no country in Europe so subdued by any single authority as not to contain citizens who are ready to protect the man who raises his voice in the cause of truth from the consequences of his hardihood. If he is unfortunate enough to live under an absolute government, the people is upon his side; if he inhabits a free country, he may find a shelter behind the authority of the throne, if he require one. The aristocratic part of society supports him in some countries, and the democracy in others. But in a nation where democratic institutions exist, organized like those of the United States, there is but one sole authority, one single element of strength and of success, with nothing beyond it.
 In America the majority raises very formidable barriers to the liberty of opinion: within these barriers an author may write whatever he pleases, but he will repent it if he ever step beyond them. Not that he is exposed to the terrors of an auto-da-fe, but he is tormented by the slights and persecutions of daily obloquy. His political career is closed forever, since he has offended the only authority which is able to promote his success. Every sort of compensation, even that of celebrity, is refused to him. Before he published his opinions he imagined that he held them in common with many others; but no sooner has he declared them openly than he is loudly censured by his overbearing opponents, whilst those who think without having the courage to speak, like him, abandon him in silence. He yields at length, oppressed by the daily efforts he has been making, and he subsides into silence, as if he was tormented by remorse for having spoken the truth.
 Fetters and headsmen were the coarse instruments which tyranny formerly employed; but the civilization of our age has refined the arts of despotism which seemed, however, to have been sufficiently perfected before. The excesses of monarchical power had devised a variety of physical means of oppression: the democratic republics of the present day have rendered it as entirely an affair of the mind as that will which it is intended to coerce. Under the absolute sway of an individual despot the body was attacked in order to subdue the soul, and the soul escaped the blows which were directed against it and rose superior to the attempt; but such is not the course adopted by tyranny in democratic republics; there the body is left free, and the soul is enslaved. The sovereign can no longer say, “You shall think as I do on pain of death;” but he says, “You are free to think differently from me, and to retain your life, your property, and all that you possess; but if such be your determination, you are henceforth an alien among your people. You may retain your civil rights, but they will be useless to you, for you will never be chosen by your fellow-citizens if you solicit their suffrages, and they will affect to scorn you if you solicit their esteem. You will remain among men, but you will be deprived of the rights of mankind. Your fellow-creatures will shun you like an impure being, and those who are most persuaded of your innocence will abandon you too, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence in comparably worse than death.”
 Monarchical institutions have thrown an odium upon despotism; let us beware lest democratic republics should restore oppression, and should render it less odious and less degrading in the eyes of the many, by making it still more onerous to the few.
 Works have been published in the proudest nations of the Old World expressly intended to censure the vices and deride the follies of the times; Labruyere inhabited the palace of Louis XIV when he composed his chapter upon the Great, and Moliere criticised the courtiers in the very pieces which were acted before the Court. But the ruling power in the United States is not to be made game of; the smallest reproach irritates its sensibility, and the slightest joke which has any foundation in truth renders it indignant; from the style of its language to the more solid virtues of its character, everything must be made the subject of encomium. No writer, whatever be his eminence, can escape from this tribute of adulation to his fellow-citizens. The majority lives in the perpetual practice of self-applause, and there are certain truths which the Americans can only learn from strangers or from experience.
 If great writers have not at present existed in America, the reason is very simply given in these facts; there can be no literary genius without freedom of opinion, and freedom of opinion does not exist in America. The Inquisition has never been able to prevent a vast number of anti-religious books from circulating in Spain. The empire of the majority succeeds much better in the United States, since it actually removes the wish of publishing them. Unbelievers are to be met with in America, but, to say the truth, there is no public organ of infidelity. Attempts have been made by some governments to protect the morality of nations by prohibiting licentious books. In the United States no one is punished for this sort of works, but no one is induced to write them; not because all the citizens are immaculate in their manners, but because the majority of the community is decent and orderly.
 In these cases the advantages derived from the exercise of this power are unquestionable, and I am simply discussing the nature of the power itself. This irresistible authority is a constant fact, and its judicious exercise is an accidental occurrence.
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 ---
 title: "The Freedom of the Press"
 author: "George Orwell"
 image: /img/orwell-in-color.jpg
 era: "Twentieth Century"
 topic: "Free Speech"
 draft: true
 ---
 **‘The Freedom of the Press’**
 First published: *The Times Literary Supplement*, September 15, 1972.
 This book was first thought of, so far as the central idea goes, in 1937, but was not written down until about the end of 1943. By the time when it came to be written it was obvious that there would be great difficulty in getting it published (in spite of the present book shortage which ensures that anything describable as a book will ‘sell’), and in the event it was refused by four publishers. Only one of these had any ideological motive. Two had been publishing anti-Russian books for years, and the other had no noticeable political colour. One publisher actually started by accepting the book, but after making the preliminary arrangements he decided to consult the Ministry of Information, who appear to have warned him, or at any rate strongly advised him, against publishing it. Here is an extract from his letter:
 I mentioned the reaction I had had from an important official in the Ministry of Information with regard to *Animal Farm*. I must confess that this expression of opinion has given me seriously to think… I can see now that it might be regarded as something which it was highly ill-advised to publish at the present time. If the fable were addressed generally to dictators and dictatorships at large then publication would be all right, but the fable does follow, as I see now, so completely the progress of the Russian Soviets and their two dictators, that it can apply only to Russia, to the exclusion of the other dictatorships. Another thing: it would be less offensive if the predominant caste in the fable were not pigs[*]. I think the choice of pigs as the ruling caste will no doubt give offence to many people, and particularly to anyone who is a bit touchy, as undoubtedly the Russians are.
 > \* It is not quite clear whether this suggested modification is Mr… ’s own idea, or originated with the Ministry of Information; but it seems to have the official ring about it. [*Orwell’s Note*]
 This kind of thing is not a good symptom. Obviously it is not desirable that a government department should have any power of censorship (except security censorship, which no one objects to in war time) over books which are not officially sponsored. But the chief danger to freedom of thought and speech at this moment is not the direct interference of the MOI or any official body. If publishers and editors exert themselves to keep certain topics out of print, it is not because they are frightened of prosecution but because they are frightened of public opinion. In this country intellectual cowardice is the worst enemy a writer or journalist has to face, and that fact does not seem to me to have had the discussion it deserves.
 Any fairminded person with journalistic experience will admit that during this war *official* censorship has not been particularly irksome. We have not been subjected to the kind of totalitarian ‘co-ordination’ that it might have been reasonable to expect. The press has some justified grievances, but on the whole the Government has behaved well and has been surprisingly tolerant of minority opinions. The sinister fact about literary censorship in England is that it is largely voluntary.
 Unpopular ideas can be silenced, and inconvenient facts kept dark, without the need for any official ban. Anyone who has lived long in a foreign country will know of instances of sensational items of news — things which on their own merits would get the big headlines-being kept right out of the British press, not because the Government intervened but because of a general tacit agreement that ‘it wouldn’t do’ to mention that particular fact. So far as the daily newspapers go, this is easy to understand. The British press is extremely centralised, and most of it is owned by wealthy men who have every motive to be dishonest on certain important topics. But the same kind of veiled censorship also operates in books and periodicals, as well as in plays, films and radio. At any given moment there is an orthodoxy, a body of ideas which it is assumed that all right-thinking people will accept without question. It is not exactly forbidden to say this, that or the other, but it is ‘not done’ to say it, just as in mid-Victorian times it was ‘not done’ to mention trousers in the presence of a lady. Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness. A genuinely unfashionable opinion is almost never given a fair hearing, either in the popular press or in the highbrow periodicals.
 At this moment what is demanded by the prevailing orthodoxy is an uncritical admiration of Soviet Russia. Everyone knows this, nearly everyone acts on it. Any serious criticism of the Soviet régime, any disclosure of facts which the Soviet government would prefer to keep hidden, is next door to unprintable. And this nation-wide conspiracy to flatter our ally takes place, curiously enough, against a background of genuine intellectual tolerance. For though you arc not allowed to criticise the Soviet government, at least you are reasonably free to criticise our own. Hardly anyone will print an attack on Stalin, but it is quite safe to attack Churchill, at any rate in books and periodicals. And throughout five years of war, during two or three of which we were fighting for national survival, countless books, pamphlets and articles advocating a compromise peace have been published without interference. More, they have been published without exciting much disapproval. So long as the prestige of the USSR is not involved, the principle of free speech has been reasonably well upheld. There are other forbidden topics, and I shall mention some of them presently, but the prevailing attitude towards the USSR is much the most serious symptom. It is, as it were, spontaneous, and is not due to the action of any pressure group.
 The servility with which the greater part of the English intelligentsia have swallowed and repeated Russian propaganda from 1941 onwards would be quite astounding if it were not that they have behaved similarly on several earlier occasions. On one controversial issue after another the Russian viewpoint has been accepted without examination and then publicised with complete disregard to historical truth or intellectual decency. To name only one instance, the BBC celebrated the twenty-fifth anniversary of the Red Army without mentioning Trotsky. This was about as accurate as commemorating the battle of Trafalgar without mentioning Nelson, but it evoked no protest from the English intelligentsia. In the internal struggles in the various occupied countries, the British press has in almost all cases sided with the faction favoured by the Russians and libelled the opposing faction, sometimes suppressing material evidence in order to do so. A particularly glaring case was that of Colonel Mihailovich, the Jugoslav Chetnik leader. The Russians, who had their own Jugoslav protege in Marshal Tito, accused Mihailovich of collaborating with the Germans. This accusation was promptly taken up by the British press: Mihailovich’s supporters were given no chance of answering it, and facts contradicting it were simply kept out of print. In July of 1943 the Germans offered a reward of 100,000 gold crowns for the capture of Tito, and a similar reward for the capture of Mihailovich. The British press ‘splashed’ the reward for Tito, but only one paper mentioned (in small print) the reward for Mihailovich: and the charges of collaborating with the Germans continued. Very similar things happened during the Spanish civil war. Then, too, the factions on the Republican side which the Russians were determined to crush were recklessly libelled in the English leftwing [*sic*] press, and any statement in their defence even in letter form, was refused publication. At present, not only is serious criticism of the USSR considered reprehensible, but even the fact of the existence of such criticism is kept secret in some cases. For example, shortly before his death Trotsky had written a biography of Stalin. One may assume that it was not an altogether unbiased book, but obviously it was saleable. An American publisher had arranged to issue it and the book was in print — 1 believe the review copies had been sent out — when the USSR entered the war. The book was immediately withdrawn. Not a word about this has ever appeared in the British press, though clearly the existence of such a book, and its suppression, was a news item worth a few paragraphs.
 It is important to distinguish between the kind of censorship that the English literary intelligentsia voluntarily impose upon themselves, and the censorship that can sometimes be enforced by pressure groups. Notoriously, certain topics cannot be discussed because of ‘vested interests’. The best-known case is the patent medicine racket. Again, the Catholic Church has considerable influence in the press and can silence criticism of itself to some extent. A scandal involving a Catholic priest is almost never given publicity, whereas an Anglican priest who gets into trouble (e.g. the Rector of Stiffkey) is headline news. It is very rare for anything of an anti-Catholic tendency to appear on the stage or in a film. Any actor can tell you that a play or film which attacks or makes fun of the Catholic Church is liable to be boycotted in the press and will probably be a failure. But this kind of thing is harmless, or at least it is understandable. Any large organisation will look after its own interests as best it can, and overt propaganda is not a thing to object to. One would no more expect the *Daily Worker* to publicise unfavourable facts about the USSR than one would expect the *Catholic Herald* to denounce the Pope. But then every thinking person knows the *Daily Worker* and the *Catholic Herald* for what they are. What is disquieting is that where the USSR and its policies are concerned one cannot expect intelligent criticism or even, in many cases, plain honesty from Liberal [*sic — and throughout as typescript*] writers and journalists who are under no direct pressure to falsify their opinions. Stalin is sacrosanct and certain aspects of his policy must not be seriously discussed. This rule has been almost universally observed since 1941, but it had operated, to a greater extent than is sometimes realised, for ten years earlier than that. Throughout that time, criticism of the Soviet régime *from the left* could only obtain a hearing with difficulty. There was a huge output of anti-Russian literature, but nearly all of it was from the Conservative angle and manifestly dishonest, out of date and actuated by sordid motives. On the other side there was an equally huge and almost equally dishonest stream of pro-Russian propaganda, and what amounted to a boycott on anyone who tried to discuss all-important questions in a grown-up manner. You could, indeed, publish anti-Russian books, but to do so was to make sure of being ignored or misrepresented by nearly me whole of the highbrow press. Both publicly and privately you were warned that it was ‘not done’. What you said might possibly be true, but it was ‘inopportune’ and played into the hands of this or that reactionary interest. This attitude was usually defended on the ground that the international situation, and me urgent need for an Anglo-Russian alliance, demanded it; but it was clear that this was a rationalisation. The English intelligentsia, or a great part of it, had developed a nationalistic loyalty towards me USSR, and in their hearts they felt that to cast any doubt on me wisdom of Stalin was a kind of blasphemy. Events in Russia and events elsewhere were to be judged by different standards. The endless executions in me purges of 1936-8 were applauded by life-long opponents of capital punishment, and it was considered equally proper to publicise famines when they happened in India and to conceal them when they happened in me Ukraine. And if this was true before the war, the intellectual atmosphere is certainly no better now.
 But now to come back to this book of mine. The reaction towards it of most English intellectuals will be quite simple: ‘It oughtn’t to have been published.’ Naturally, those reviewers who understand the art of denigration will not attack it on political grounds but on literary ones. They will say that it is a dull, silly book and a disgraceful waste of paper. This may well be true, but it is obviously not me whole of the story. One does not say that a book ‘ought not to have been published’ merely because it is a bad book. After all, acres of rubbish are printed daily and no one bothers. The English intelligentsia, or most of them, will object to this book because it traduces their Leader and (as they see it) does harm to the cause of progress. If it did me opposite they would have nothing to say against it, even if its literary faults were ten times as glaring as they are. The success of, for instance, the Left Book Club over a period of four or five years shows how willing they are to tolerate both scurrility and slipshod writing, provided that it tells them what they want to hear.
 The issue involved here is quite a simple one: Is every opinion, however unpopular — however foolish, even — entitled to a hearing? Put it in that form and nearly any English intellectual will feel that he ought to say ‘Yes’. But give it a concrete shape, and ask, ‘How about an attack on Stalin? Is *that* entitled to a hearing?’, and the answer more often than not will be ‘No’, In that case the current orthodoxy happens to be challenged, and so the principle of free speech lapses. Now, when one demands liberty of speech and of the press, one is not demanding absolute liberty. There always must be, or at any rate there always will be, some degree of censorship, so long as organised societies endure. But freedom, as Rosa Luxembourg [*sic*] said, is ‘freedom for the other fellow’. The same principle is contained in the famous words of Voltaire: ‘I detest what you say; I will defend to the death your right to say it.’ If the intellectual liberty which without a doubt has been one of the distinguishing marks of western civilisation means anything at all, it means that everyone shall have the right to say and to print what he believes to be the truth, provided only that it does not harm the rest of the community in some quite unmistakable way. Both capitalist democracy and the western versions of Socialism have till recently taken that principle for granted. Our Government, as I have already pointed out, still makes some show of respecting it. The ordinary people in the street-partly, perhaps, because they are not sufficiently interested in ideas to be intolerant about them-still vaguely hold that ‘I suppose everyone’s got a right to their own opinion.’ It is only, or at any rate it is chiefly, the literary and scientific intelligentsia, the very people who ought to be the guardians of liberty, who are beginning to despise it, in theory as well as in practice.
 One of the peculiar phenomena of our time is the renegade Liberal. Over and above the familiar Marxist claim that ‘bourgeois liberty’ is an illusion, there is now a widespread tendency to argue that one can only defend democracy by totalitarian methods. If one loves democracy, the argument runs, one must crush its enemies by no matter what means. And who are its enemies? It always appears that they are not only those who attack it openly and consciously, but those who ‘objectively’ endanger it by spreading mistaken doctrines. In other words, defending democracy involves destroying all independence of thought. This argument was used, for instance, to justify the Russian purges. The most ardent Russophile hardly believed that all of the victims were guilty of all the things they were accused of: but by holding heretical opinions they ‘objectively’ harmed the régime, and therefore it was quite right not only to massacre them but to discredit them by false accusations. The same argument was used to justify the quite conscious lying that went on in the leftwing press about the Trotskyists and other Republican minorities in the Spanish civil war. And it was used again as a reason for yelping against *habeas corpus*when Mosley was released in 1943.
 These people don’t see that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you. Make a habit of imprisoning Fascists without trial, and perhaps the process won’t stop at Fascists. Soon after the suppressed *Daily Worker* had been reinstated, I was lecturing to a workingmen’s college in South London. The audience were working-class and lower-middle class intellectuals — the same sort of audience that one used to meet at Left Book Club branches. The lecture had touched on the freedom of the press, and at the end, to my astonishment, several questioners stood up and asked me: Did I not think that the lifting of the ban on the *Daily Worker* was a great mistake? When asked why, they said that it was a paper of doubtful loyalty and ought not to be tolerated in war time. I found myself defending the *Daily Worker*, which has gone out of its way to libel me more than once. But where had these people learned this essentially totalitarian outlook? Pretty certainly they had learned it from the Communists themselves! Tolerance and decency are deeply rooted in England, but they are not indestructible, and they have to be kept alive partly by conscious effort. The result of preaching totalitarian doctrines is to weaken the instinct by means of which free peoples know what is or is not dangerous. The case of Mosley illustrates this. In 1940 it was perfectly right to intern Mosley, whether or not he had committed any technical crime. We were fighting for our lives and could not allow a possible quisling to go free. To keep him shut up, without trial, in 1943 was an outrage. The general failure to see this was a bad symptom, though it is true that the agitation against Mosley’s release was partly factitious and partly a rationalisation of other discontents. But how much of the present slide towards Fascist ways of thought is traceable to the ‘anti-Fascism’ of the past ten years and the unscrupulousness it has entailed?
 It is important to realise that the current Russomania is only a symptom of the general weakening of the western liberal tradition. Had the MOI chipped in and definitely vetoed the publication of this book, the bulk of the English intelligentsia would have seen nothing disquieting in this. Uncritical loyalty to the USSR happens to be the current orthodoxy, and where the supposed interests of the USSR are involved they are willing to tolerate not only censorship but the deliberate falsification of history. To name one instance. At the death of John Reed, the author of *Ten Days that Shook the World —* first-hand account of the early days of the Russian Revolution — the copyright of the book passed into the hands of the British Communist Party, to whom I believe Reed had bequeathed it. Some years later the British Communists, having destroyed the original edition of the book as completely as they could, issued a garbled version from which they had eliminated mentions of Trotsky and also omitted the introduction written by Lenin. If a radical intelligentsia had still existed in Britain, this act of forgery would have been exposed and denounced in every literary paper in the country. As it was there was little or no protest. To many English intellectuals it seemed quite a natural thing to do. And this tolerance or [*sic* = of?] plain dishonesty means much more than that admiration for Russia happens to be fashionable at this moment. Quite possibly that particular fashion will not last. For all I know, by the time this book is published my view of the Soviet régime may be the generally-accepted one. But what use would that be in itself? To exchange one orthodoxy for another is not necessarily an advance. The enemy is the gramophone mind, whether or not one agrees with the record that is being played at the moment.
 I am well acquainted with all the arguments against freedom of thought and speech — the arguments which claim that it cannot exist, and the arguments which claim that it ought not to. I answer simply that they don’t convince me and that our civilisation over a period of four hundred years has been founded on the opposite notice. For quite a decade past I have believed that the existing Russian régime is a mainly evil thing, and I claim the right to say so, in spite of the fact that we are allies with the USSR in a war which I want to see won. If I had to choose a text to justify myself, I should choose the line from Milton:
 > By the known rules of ancient liberty.
 The word *ancient* emphasises the fact that intellectual freedom is a deep-rooted tradition without which our characteristic western culture could only doubtfully exist. From that tradition many of our intellectuals arc visibly turning away. They have accepted the principle that a book should be published or suppressed, praised or damned, not on its merits but according to political expediency. And others who do not actually hold this view assent to it from sheer cowardice. An example of this is the failure of the numerous and vocal English pacifists to raise their voices against the prevalent worship of Russian militarism. According to those pacifists, all violence is evil, and they have urged us at every stage of the war to give in or at least to make a compromise peace. But how many of them have ever suggested that war is also evil when it is waged by the Red Army? Apparently the Russians have a right to defend themselves, whereas for us to do [so] is a deadly sin. One can only explain this contradiction in one way: that is, by a cowardly desire to keep in with the bulk of the intelligentsia, whose patriotism is directed towards the USSR rather than towards Britain. I know that the English intelligentsia have plenty of reason for their timidity and dishonesty, indeed I know by heart the arguments by which they justify themselves. But at least let us have no more nonsense about defending liberty against Fascism. If liberty means anything at all it means the right to tell people what they do not want to hear. The common people still vaguely subscribe to that doctrine and act on it. In our country — it is not the same in all countries: it was not so in republican France, and it is not so in the USA today — it is the liberals who fear liberty and the intellectuals who want to do dirt on the intellect: it is to draw attention to that fact that I have written this preface.
 1945
 ------
 For some reason in their 2000 edition, Penguin decided to publish this preface (the only one) as Appendix with small intro. But it is preface? Preface for Ukrainian edition of *Animal Farm* was printed also as Appendix (II). (*O. Dag*)
 ------
 By Penguin:
 **APPENDIX I**
 *Orwell’s Proposed Preface to* Animal Farm.
 Space was allowed in the first edition of *Animal Farm* for a preface by Orwell, as the pagination of the author’s proof indicates. This preface was not included and the typescript was only found years later by Ian Angus. It was published, with an introduction by Professor Bernard Crick entitled ‘How the essay came to be written’, in *The Times Literary Supplement*, 15 September 1972.
 George Orwell: ‘The Freedom of the Press’ First published: *The Times Literary Supplement*, September 15, 1972.
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 ---
 title: "There Is No Such Thing as Free Speech"
 author: "Stanley Fish"
 image: /img/stanley-fish.jpg
 era: "Twentieth Century"
 topic: "Free Speech"
 draft: false
 ---
 *The following is an excerpt from the essay that shares the title of the book: [“There’s No Such Thing As Free Speech”](https://www.amazon.co.uk/Theres-Such-Thing-Free-Speech-ebook/dp/B004UP9AN4/ref=sr_1_11?keywords=stanley+fish&qid=1572688614&s=digital-text&sr=1-11), by Stanley Fish.*
 **There’s No Such Thing As Free Speech**
 Lately, many on the liberal and progressive left have been disconcerted to find that words, phrases, and concepts thought to be their property and generative of their politics have been appropriated by the forces of neoconservatism. This is particularly true of the concept of free speech, for in recent years First Amendment rhetoric has been used to justify policies and actions the left finds problematical if not abhorrent: pornography, sexist language, campus hate speech. How has this happened? The answer I shall give in this essay is that abstract concepts like free speech do not have any “natural” content but are filled with whatever content and direction one can manage to put into them. “Free speech” is just the name we give to verbal behavior that serves the substantive agendas we wish to advance; and we give our preferred verbal behaviors that name when we can, when we have the power to do so, because in the rhetoric of American life, the label “free speech” is the one you want your favorites to wear. Free speech, in short, is not an independent value but a political prize, and if that prize has been captured by a politics opposed to yours, it can no longer be invoked in ways that further your purposes, for it is now an obstacle to those purposes. This is something that the liberal left has yet to understand, and what follows is an attempt to pry its members loose from a vocabulary that may now be a disservice to them.
 Not far from the end of his {{< newtab title="Areopagitica," url="/reading/areopagitica/" >}} and after having celebrated the virtues of toleration and unregulated publication in passages that find their way into every discussion of free speech and the First Amendment, John Milton catches himself up short and says, of course I didn’t mean Catholics, them we exterminate:
 > I mean not tolerated popery, and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpate . . . that also which is impious or evil absolutely against faith or manners no law can possibly permit that intends not to unlaw itself.
 Notice that Milton is not simply stipulating a single exception to a rule generally in place; the kinds of utterance that might be regulated and even prohibited on pain of trial and punishment constitute an open set; popery is named only as a particularly perspicuous instance of the advocacy that cannot be tolerated. No doubt there are other forms of speech and action that might be categorized as “open superstitions” or as subversive of piety, faith, and manners, and presumably these too would be candidates for “extirpation.” Nor would Milton think himself culpable for having failed to provide a list of unprotected utterances. The list will fill itself out as utterances are put to the test implied by his formulation: would this form of speech or advocacy, if permitted to flourish, tend to undermine the very purposes for which our society is constituted? One cannot answer this question with respect to a particular utterance in advance of its emergence on the world’s stage; rather, one must wait and ask the question in the full context of its production and (possible) dissemination. It might appear that the result would be ad hoc and unprincipled, but for Milton the principle inheres in the core values in whose name individuals of like mind came together in the first place. Those values, which include the search for truth and the promotion of virtue, are capacious enough to accommodate a diversity of views. But at some point—again impossible of advance specification—capaciousness will threaten to become shapelessness, and at that point fidelity to the original values will demand acts of extirpation.
 I want to say that all affirmations of freedom of expression are like Milton’s, dependent for their force on an exception that literally carves out the space in which expression can then emerge. I do not mean that expression (saying something) is a realm whose integrity is sometimes compromised by certain restrictions but that restriction, in the form of an underlying articulation of the world that necessarily (if silently) negates alternatively possible articulations, is constitutive of expression. Without restriction, without an inbuilt sense of what it would be meaningless to say or wrong to say, there could be no assertion and no reason for asserting it. The exception to unregulated expression is not a negative restriction but a positive hollowing out of value—we are for this, which means we are against that—in relation to which meaningful assertion can then occur. It is in reference to that value—constituted as all values are by an act of exclusion—that some forms of speech will be heard as (quite literally) intolerable. Speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict. When the pinch comes (and sooner or later it will always come) and the institution (be it church, state, or university) is confronted by behavior subversive of its core rationale, it will respond by declaring “of course we mean not tolerated———, that we extirpate,” not because an exception to a general freedom has suddenly and contradictorily been announced, but because the freedom has never been general and has always been understood against the background of an originary exclusion that gives it meaning….
 …I think… people cling to First Amendment pieties because they do not wish to face… the realization (at which I have already hinted) that decisions about what is and is not protected in the realm of expression will rest not on principle or firm doctrine but on the ability of some persons to interpret—recharacterize or rewrite—principle and doctrine in ways that lead to the protection of speech they want heard and the regulation of speech they want heard and the regulation of speech they want silenced. (That is how George Bush can argue for flag-burning statutes and against campus hate-speech codes.) When the First Amendment is successfully invoked, the result is not a victory for free speech in the face of a challenge from politics but a *political victory* won by the party that has managed to wrap its agenda in the mantle of free speech.
 It is from just such a conclusion — a conclusion that would put politics inside the First Amendment — that commentators recoil, saying things like “This could render the First Amendment a dead letter,” or “This would leave us with no normative guidance in determining when and what speech to protect,” or “This effaces the distinction between speech and action,” or “This is incompatible with any viable notion of freedom of expression.” To these statements (culled more or less at random from recent law review pieces) I would reply that the First Amendment has always been a dead letter if one understood its “liveness” to depend on the identification and protection of a realm of “mere” expression distinct from the realm of regulatable conduct; the distinction between speech and action has always been effaced in principle, although in practice it can take whatever form the prevailing political conditions mandate; we have never had any normative guidance for marking off protected from unprotected speech; rather, the guidance we have has been fashioned (and refashioned) in the very political struggles over which it then (for a time) presides. In short, the name of the game has always been politics, even when (indeed, especially when) it is played by stigmatizing politics as the area to be avoided.
 In saying this, I would not be heard as arguing either for or against regulation and speech codes as a matter of general principle. Instead my argument turns away from general principle to the pragmatic (anti)principle of considering each situation as it emerges. The question of whether or not to regulate will always be a local one, and we can not rely on abstractions that are either empty of content or filled with the content of some partisan agenda to generate a “principled” answer. Instead we must consider in every case what is at stake and what are the risks and gains of alternative courses of action. In the course of this consideration many things will be of help, but among them will not be phrases like “freedom of speech” or “the right of individual expression,” because, as they are used now, these phrases tend to obscure rather than clarify our dilemmas. Once they are deprived of their talismanic force, once it is no longer strategically effective simply to invoke them in the act of walking away from a problem, the conversation could continue in directions that are now blocked by a First Amendment absolutism that has only been honored in the breach anyway…
 …No such thing as free (nonideologically constrained) speech; no such thing as a public forum purged of ideological pressures or exclusions. That’s my thesis, and waiting at the end (really at the beginning) of it is, as my respondents have said, politics. Not, however, politics as the dirty word it becomes in most First Amendment discussions, but politics as the attempt to implement some partisan vision. I place the word “vision” after “partisan” so as to forestall the usual reading of partisan as “unprincipled,” the reading Post attributes to me when he finds me “writing on the assumption that there is some implicit and mutually exclusive dichotomy between politics and principle.” In fact, my argument is exactly the reverse: since it is only from within a commitment to some particular (not abstract) agenda that one feels the deep urgency we identify as “principled,” politics is the source of principle, not its opposite. When two agendas square off, the contest is never between politics and principle but between two forms of politics, or, if you prefer, two forms of principle…
 …It is a counsel that follows from the thesis that there is no such thing as free speech, which is not, after all, a thesis as startling or corrosive as may first have seemed. It merely says that there is no class of utterances separable from the world of conduct and that therefore the identification of some utterances as members of that nonexistent class will always be evidence that a political line has been drawn rather than a line that denies politics entry into the forum of public discourse. It is the job of the First Amendment to mark out an area in which competing views can be considered without state interference; but if the very marking out of that area is itself an interference (as it always will be), First Amendment jurisprudence is inevitably self-defeating and subversive of its own aspirations. That’s the bad news. The good news is that precisely because speech is never “free” in the two senses required—free of consequences and free from state pressure—speech always matters, is always doing work; because everything we say impinges on the world in ways indistinguishable from the effects of physical action, we must take responsibility for our verbal performances—all of them—and not assume that they are being taken cares of by a clause in the Constitution. Of course, with responsibility comes risks, but they have always been our risks, and no doctrine of free speech has ever insulated us from them. They are the risks, respectively, of permitting speech that does obvious harm and of shutting off speech in ways that might deny us the benefit of Joyce’s Ulysses or Lawrence’s Lady Chatterly’s Lover or Titian’s paintings. Nothing, I repeat, can insulate us from those risks. (If there is no normative guidance in determining when and what speech to protect, there is no normative guidance in determining what is art—like free speech a category that includes everything and nothing—and what is obscenity.) Moreover, nothing can provide us with a principle for deciding which risk in the long run is the best to take. I am persuaded that at the present moment, right now, the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope toward tyranny. This is a judgment for which I can offer reasons but no guarantees. All I am saying is that the judgments of those who would come down on the other side carry no guarantees either. They urge us to put our faith in apolitical abstractions, but the abstractions they invoke—the marketplace of ideas, speech alone, speech itself—only come in political guises, and therefore in trusting to them we fall (unwittingly) under the sway of the very forces we wish to keep at bay. It is not that there are no choices to make or means of making them; it is just that the choices as well as the means are inextricable from the din and confusion of partisan struggle. There is no safe place.
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 {{- $pages := slice -}}
 {{- if or $.IsHome $.IsSection -}}
 {{- $pages = $pctx.RegularPages -}}
 {{- else -}}
 {{- $pages = $pctx.Pages -}}
 {{- end -}}
 {{- $limit := .Site.Config.Services.RSS.Limit -}}
 {{- if ge $limit 1 -}}
 {{- $pages = $pages | first $limit -}}
 {{- end -}}
 {{- printf "<?xml version=\"1.0\" encoding=\"utf-8\" standalone=\"yes\"?>" | safeHTML }}
 <rss version="2.0" xmlns:atom="http://www.w3.org/2005/Atom">
    <channel>
        <title>{{ if eq  .Title  .Site.Title }}{{ .Site.Title }}{{ else }}{{ with .Title }}{{.}} on {{ end }}{{ .Site.Title }}{{ end }}</title>
        <link>{{ .Permalink }}</link>
        <image>{{ .Permalink }}img/avatar.png</image>
        <description>Recent content {{ if ne  .Title  .Site.Title }}{{ with .Title }}in {{.}} {{ end }}{{ end }}on {{ .Site.Title }}</description>
        <generator>Hugo -- gohugo.io</generator>{{ with .Site.LanguageCode }}
        <language>{{.}}</language>{{end}}{{ with .Site.Author.email }}
        <managingEditor>{{.}}{{ with $.Site.Author.name }} ({{.}}){{end}}</managingEditor>{{end}}{{ with .Site.Author.email }}
        <webMaster>{{.}}{{ with $.Site.Author.name }} ({{.}}){{end}}</webMaster>{{end}}{{ with .Site.Copyright }}
        <copyright>{{.}}</copyright>{{end}}{{ if not .Date.IsZero }}
        <lastBuildDate>{{ .Date.Format "Mon, 02 Jan 2006 15:04:05 -0700" | safeHTML }}</lastBuildDate>{{ end }}
        {{- with .OutputFormats.Get "RSS" -}}
        {{ printf "<atom:link href=%q rel=\"self\" type=%q />" .Permalink .MediaType | safeHTML }}
        {{- end -}}
        {{ range $pages }}
        <item>
            <title>{{ .Title }}</title>
            <author>{{ .Params.author }}</author>
            <link>{{ .Permalink }}</link>
            <guid>{{ .Permalink }}</guid>
            <description>
                {{`<![CDATA[ ` | safeHTML }}
                {{ if isset .Params "image" }}<p><img src="https://gmgauthier.com{{ with .Params.image }}{{.}}{{ end }}"/></p>{{end}}
                {{ .Summary | safeHTML }}
                ]]>
            </description>
        </item>
        {{ end }}
    </channel>
 </rss>
--- a/layouts/reading/single.html
+++ b/layouts/reading/single.html
@ -3,6 +3,9 @@
 <div class="header" style="background-color: whitesmoke; opacity: 50%">
    <h1>{{ .Title }}</h1>
    <h2>{{ .Params.author }}</h2>
    {{if  isset .Params "topic" }}
    <h3>Topic: {{ .Params.topic }}</h3>
    {{ end }}
 </div>
 <div class="content" style="text-align: justify-all">
--- a/static/img/alan-haworth.jpg
+++ b/static/img/alan-haworth.jpg
--- a/static/img/benjamin-franklin1.jpg
+++ b/static/img/benjamin-franklin1.jpg
--- a/static/img/david-hume.jpg
+++ b/static/img/david-hume.jpg
--- a/static/img/herbert-goodrich.jpg
+++ b/static/img/herbert-goodrich.jpg
--- a/static/img/jsmill.jpg
+++ b/static/img/jsmill.jpg
--- a/static/img/orwell-in-color.jpg
+++ b/static/img/orwell-in-color.jpg
--- a/static/img/rothbard.jpg
+++ b/static/img/rothbard.jpg
--- a/static/img/stanley-fish.jpg
+++ b/static/img/stanley-fish.jpg
--- a/static/img/tocqueville.jpg
+++ b/static/img/tocqueville.jpg
--- a/static/img/young-kant.jpg
+++ b/static/img/young-kant.jpg
--- a/themes/blackburn/archetypes/reading.md
+++ b/themes/blackburn/archetypes/reading.md
@ -1,7 +0,0 @@
 +++
 title: "{{ replace .Name "-" " " | title }}"
 author: ""
 image: /img/
 era: ""
 draft: true
 +++
--- a/themes/blackburn/static/css/blackburn.css
+++ b/themes/blackburn/static/css/blackburn.css
@ -106,3 +106,22 @@ i {
 .pagination a {
  color: #265778;
 }
 .row {
  width: 100%;
  display: flex;
  flex-direction: row;
  vertical-align: bottom;
  justify-content: left;
 }
 .micro-block {
  width: 75px;
  padding: 2px;
 }
 .small-block {
  width: 20%;
 }
 .big-block {
  width: 40%;
  vert-align: middle;
 }