The Development of the
Freedom of Speech
GOVT 2305
In this section we trace the development of
the freedom of speech, specifically the
gradual allowance of individuals to engage
in speech critical of government.
This will set us up for a look at the way the
Supreme Court handles free speech cases
and then how public opinion evolves.
This has occurred because over
time the concept of sedition has
been narrowed. And justifications
for censorship have also been
narrowed.
We’ll look at both in this section –
mostly the narrowing of sedition.
Here are blog Tags taking you to
the various posts I’ve complied
over the years related to this
section:
Free Speech
Freedom of Speech
Marketplace of Ideas
Sedition
We will note that the freedom of
speech is essential in a democracy
and has allowed for public opinion
to emerge as an external force on
government.
Let’s begin by reviewing the
language of the First Amendment.
“Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the press; or
the right of the people peaceably to
assemble, and to petition the
Government for a redress of
grievances.”
Remember from a previous section
that this does not establish rights,
it restricts legislative interference
with certain rights.
It removes these from the control
the majority, meaning that they are
intended to support the right of
the minority.
The carves out protections for two
types of rights.
Religious
Political
We covered religious freedoms in a
previous sections.
There are four specific types of
political freedoms established.
The freedom of speech solidified
the right of people to not only
speak freely but to influence
others, thus influencing the course
of public opinion which can in turn
influence the direction of public
policy.
The freedom of the press allows
for the development of
communications mechanisms that
can disseminate speech and
provide information about public
events without governmental
interference.
The right to peaceful assembly
interest groups and political
parties, in addition to the ability of
people to meet and discuss politics
– or anything else they choose – as
they wish.
The right petition for a redress of
grievances allows for citizens to
take an issue to their elected
representatives, to engage in
lobbying and other activities which
allow for a direct interaction with
government officials.
None of these freedoms were fully
recognized or protected in Britain or the
American colonies prior to the Glorious
Revolution, and were really only
sporadically protected following that.
Recall that the states had no obligation to
recognize these rights until the 14th
Amendment was ratified.
Let’s dig into the development of
the freedom of speech.
Here is a critical consequence of
Freedom of Speech:
By allowing people to think freely,
government allows citizens to form
their own opinions and to be
critical of it.
They tend to not like that.
Governments, historically, do not
like to be criticized by their people,
and often have not allowed it.
Sedition and Seditious Libel have
been punished over history,
sometimes brutally.
In law, sedition is overt conduct,
such as speech and organization,
that is deemed by the legal
authority to tend toward
insurrection against the
established order. – Wikipedia.
Seditious libel is defined as any
spoken or written attempt to:
• bring government into
hatred or contempt
• incites people to change government
• promotes discontent among the
citizens
Relevant trivia: “The crime of
seditious libel was defined and
established in England during the
1606 case "De Libellis Famosis" by
the Star Chamber. The case defined
seditious libel as criticism of public
persons, the government, or King.”
– Wikipedia.
Remember that we covered the Star
Chamber previously when we looked
at the judiciary.
It was a court fully controlled by the
king, and used to punish powerful
opponents. Sedition allows them to be
punished for what they say –
especially if they say something
negative about the monarch.
Seditious libel "has always been an
accordion-like concept, expandable
or contractible at the whim of
judges.“ - Leonard Levy.
Sedition in its modern meaning first appeared in
the Elizabethan Era (c. 1590) as the "notion of
inciting by words or writings disaffection
towards the state or constituted authority".
"Sedition complements treason and martial law:
while treason controls primarily the privileged,
ecclesiastical opponents, priests, and Jesuits, as
well as certain commoners; and martial law
frightens commoners, sedition frightens
intellectuals.“ - Wikipedia
Free speech can undermine authority.
Note that the previous section mentions
that sedition is intended to frighten
intellectuals. These people are responsible
for the ideas that can challenge existing
authority and propose new ways to
organize societies; new ideas for
governing.
Remember this guy?
In the early sections of this class
we discussed John Locke’s First and
Second Treatises on Government.
The first argued against the divine
right of the monarch. The second
argued for governments based on
the consent of the governed.
Elizabeth I would call that sedition,
if not outright treason.
Sedition can go beyond articulating
ideas that challenge authority.
It can attempt to determine what
thoughts one can hold.
This occurred in Britain once monarchic power
expanded over religion.
When Henry VIII (1509 – 1547) became king he
expanded the power (and resources) of the
monarchy by replacing the Catholic Church with
the Church of England. He named himself
Supreme Head of the church.
Loyalty to the king – including membership
in the Church of England - became
especially important given ongoing
hostility with the Catholic Church. To be
Catholic was to be considered a potential
enemy of the monarch and traitor to
England.
Here’s a slide from a previous section in
class:
England moved into an era of
"conformity of mind" with the new
royal supremacy (much akin to the
absolutism of France's Louis XIV):
by 1536, all ecclesiastical and
government officials were required
to publicly approve of the break
with Rome and take an oath of
loyalty – Britannia.com
To not conform was to a potential
rebel. To articulate your opinions
meant you were willing to act
rebelliously.
Like this guy:
Meet Guy
Fawkes
You might be more familiar with this image:
Or this one
There was also no allowance for
Freedom of Conscience,
or Thought.
A definition of the freedom of
conscience:
“the freedom of an individual to
hold or consider a fact, viewpoint,
or thought, independent of others'
viewpoints.”
Madison proposed the following
language for the Bill of Rights: “No
State shall violate the equal rights
of conscience.”
It was not approved by Congress
The founders of the United States
were clearly guilty of seditious
libel. As were those of Texas.
Had the revolution failed they
would have faced severe
punishment.
"We must indeed all
hang together, or
most assuredly we
shall all hang
separately."
Benjamin Franklin
He meant that
literally.
The idea that people ought to be
free to express their beliefs, even if
they are critical of government
began in late 17th Century Britain
following the Glorious Revolution
and the limitation of arbitrary
monarchic power.
Specifically it happened when the
British Bill of Rights was signed by
William and Mary.
Remember that the purpose of the
document was to place limits on the
arbitrary power of the monarchy. This
began a slow process where people
were able to enjoy political freedoms.
Here are a couple bits from the
document:
“. . . it is the Right of the Subjects to
petition the King and all Commitments and
Prosecutions for such Petitioning are
Illegall.”
“. . . the Freedome of Speech and Debates
or Proceedings in Parlyament ought not to
be impeached or questioned in any Court
or Place out of Parlyament.”
Spelling of course was a bit random back then.
And a weird thing happened when these
freedoms began to be established. Ideas
began to flow freely in Britain, and the
nation began to prosper.
Ideas about religion, government, science,
and all sorts of things began to be
exchanged. Britain became a center of
innovation.
These freedoms arrived about the
same time that coffee made an
appearance in Britain. This helped
loosen tongues.
Click here for English coffeehouses.
It also coincided with the Age of
Enlightenment.
Many early arguments in favor of
free expression were found in
Cato’s Letters
These were essays that promoted
expanded individual freedom,
speech and conscience, and argued
against tyranny.
Cato’s Letter #15
Argued that the freedom of speech
is inseparable from public liberty
“SIR, Without freedom of thought, there
can be no such thing as wisdom; and no
such thing as publick liberty, without
freedom of speech: Which is the right of
every man, as far as by it he does not hurt
and control the right of another; and this is
the only check which it ought to suffer, the
only bounds which it ought to know. . . .
. . . This sacred privilege is so essential to
free government, that the security of
property; and the freedom of speech,
always go together; and in those wretched
countries where a man can not call his
tongue his own, he can scarce call any
thing else his own. Whoever would
overthrow the liberty of the nation, must
begin by subduing the freedom of speech;
a thing terrible to publick traitors.”
These authors were very influential
in the American colonies and had
an impact on the development of
republican thought in the United
States.
It helps explain the system of
government that was developed in
the Constitution.
Its also worth pointing out that the
expansion of freedom – equally –
to different groups in society over
American History included the
ability of these groups to speak
freely.
Meanwhile in the colonies, the definition
of sedition was undergoing modification.
That was the consequence of the trial of
John Peter Zenger in 1735.
Up to that time, any negative statement
could be considered seditious, even if it
was true.
Zenger was a New York printer
charged with sedition for
printing negative stories about
the Governor of the New York
Province, William Cosby.
He was arrested for seditious
libel, but Zenger’s attorney –
Andrew Hamilton - argued to
the jury that the truth of the
stories meant they should not
be considered seditious. The
jury agreed, and changed the
meaning of sedition.
Hamilton persuaded
the jury to nullify
existing sedition law
and determine that the
speaking and printing
of the truth was not
seditious.
That said, sedition continued to be
punished in the early years of the United
States, and periodically afterwards.
An early example was the Sedition Act,
which was passed along with the Alien Act
as a way the Federalists to try to push back
against the growth of the DemocraticRepublican Party. We covered this a few
sections back when we covered the party
system in the US.
Its full title was An Act for the
Punishment of Certain Crimes
against the United States (Sedition
Act)
Click here for the LOC page on it.
Here’s the key section from the bill:
And be it further enacted, That if any person shall
write, print, utter or publish, or shall cause or procure
to be written, printed, uttered or publishing, or shall
knowingly and willingly assist or aid in writing, printing,
uttering or publishing any false, scandalous and
malicious writing or writings against the government of
the United States, or either house of the Congress of
the United States, or the President of the United States,
with intent to defame the said government, or either
house of the said Congress, or the said President, or to
bring them, or either of them, into contempt or
disrepute; . . .
. . . or to excite against them, or either or
any of them, the hatred of the good people
of the United States, or to excite any
unlawful combinations therein, for
opposing or resisting any law of the United
States, or any act of the President of the
United States, done in pursuance of any
such law, or of the powers in him vested by
the constitution of the United States, or to
resist, oppose, or defeat any such law or
act, . . .
. . . or to aid, encourage or abet any hostile
designs of any foreign nation against the
United States, their people or government,
then such person, being thereof convicted
before any court of the United States
having jurisdiction thereof, shall be
punished by a fine not exceeding two
thousand dollars, and by imprisonment not
exceeding two years.
Some people went to jail for violating the
act, for example: Matthew Lyon and
Benjamin Franklin Bache.
But it would also lead to John Adam’s
defeat in the 1800 election.
It also led to the idea that one could
oppose the president for political reasons,
but this did not mean one was seditious or
treasonous.
This is alleged to be a fight in
Congress over the Acts.
The next major sedition act passed into law was the
Sedition Act of 1918, which was passed in the waning
days of WWI.
“It forbade the use of "disloyal, profane, scurrilous, or
abusive language" about the United States
government, its flag, or its armed forces or that caused
others to view the American government or its
institutions with contempt. Those convicted under the
act generally received sentences of imprisonment for 5
to 20 years.”
It was sporadically
enforced. Eugene
Debs was among
the people who
served time for
violating the law.
Click here for a description of how
the law was implemented in
Montana.
The Montana Sedition Project.
The more significant arrests were made in
New York when 5 people were prosecuted
for printing and distributing circulars
critical of the American involvement in
WWI. This case would become known as
Abrams v. United States.
A description from the majority decision:
“It was admitted on the trial that the defendants had united
to print and distribute the described circulars and that
5,000 of them had been printed and distributed about the
22d day of August, 1918. The group had a meeting place in
New York City, in rooms rented by defendant Abrams, under
an assumed name, and there the subject of printing the
circulars was discussed about two weeks before the
defendants were arrested. The defendant Abrams, although
not a printer, on July 27, 1918, purchased the printing outfit
with which the circulars were printed, and installed it in a
basement room where the work was done at night. The
circulars were distributed, some by throwing them from a
window of a building where one of the defendants was
employed and others secretly, in New York City.” – Findlaw.
Aside from stating that the accused
did in fact violate the letter of the
law, they suggested that by
printing the circulars, they also
posed an actual physical threat to
the United States:
“ . . . the language of these circulars was
obviously intended to provoke and to encourage
resistance to the United States in the war, as the
third count runs, and, the defendants, in terms,
plainly urged and advocated a resort to a
general strike of workers in ammunition
factories for the purpose of curtailing the
production of ordnance and munitions
necessary and essential to the prosecution of
the war . . . “
Eight members
of the court
voted to uphold
the decision, but
one – Oliver
Wendell Holmes
– voted against
it.
His dissenting argument stated that since
no actual harm was likely to happen due to
the circulars, the defendants had the right
to speak freely. Sedition must include the
likelihood that harm will result from the
speech.
This marked a change for Holmes, he had
previously written for the majority in Schenck v
United States upholding a conviction under the
1917 Espionage Act.
“The First Amendment did not protect speech
encouraging insubordination, because, ‘when a nation
is at war, many things that might be said in time of
peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight, and
that no Court could regard them as protected by any
constitutional right.’”
Here’s the key part of the Schencks decision.
“We admit that in many places and in ordinary times
the defendants in saying all that was said in the circular
would have been within their constitutional rights. But
the character of every act depends upon the
circumstances in which it is done. . . . The most
stringent protection of free speech would not protect a
man in falsely shouting fire in a theatre and causing a
panic. It does not even protect a man from an
injunction against uttering words that may have all the
effect of force. . . .
. . . The question in every case is whether the words
used 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 has
a right to prevent. It is a question of proximity and
degree. When a nation is at war many things that might
be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long
as men fight and that no Court could regard them as
protected by any constitutional right.” – Schenck v. US
This is the famous falsely shouting
fire in a crowded theater rule.
It’s the classic example of
unprotected speech.
But Holmes changed his mind
somewhat in Abrams.
He started narrowing what it took
to present a clear and present
danger to the government which
might justify restrictions on speech
“It is only the present danger of
immediate evil or an intent to
bring it about that warrants
Congress in setting a limit to the
expression of opinion where
private rights are not concerned.
Congress certainly cannot forbid all
effort to change the mind of the
country.”
“I do not see how anyone can find
the intent required by the statute
in any of the defendant's words.”
“In this case sentences of twenty
years imprisonment have been
imposed for the publishing of two
leaflets that I believe the
defendants had as much right to
publish as the Government has to
publish the Constitution of the
United States now vainly invoked
by them.”
“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...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.
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 loathe and
believe to be fraught with death, unless they so
imminently threaten immediate interference
with the lawful and pressing purposes of the law
that an immediate check is required to save the
country.”
“I had conceived that the United States
through many years had shown its
repentance for the Sedition Act of 1798 by
repaying fines that it imposed. 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.‘”
“Of course I am speaking only of
expressions of opinion and exhortations,
which were all that were uttered here, but
I regret that I cannot put into more
impressive words my belief that in their
conviction upon this indictment the
defendants were deprived of their rights
under the Constitution of the United
States.”
The Marketplace of Ideas
Since this ruling mentions the
concept of the marketplace of
ideas, it’s worth digging a bit into
it. It has a great degree of
resonance in the public debate.
Holmes’ position was
based largely on the
arguments made by
John Stuart Mill in
his 1859 book On
Liberty – which itself
is based on
arguments made in
Cato #15.
The Harm Principle:
“. . . the only purpose for which
power can be rightfully exercised
over any member of a civilised
community, against his will, is to
prevent harm to others."
The essence of the marketplace of
ideas is that free open debate is
necessary in order to either swap
error for truth, or ensure a
renewed appreciation for
preexisting principles.
It allows for a dynamic, rather than
static, society.
This can include ongoing discussions of the
merit of different governing systems, and
the pros and cons of different policy
options.
But these can sometimes be taken – for
different reasons – to create a clear and
present danger, fairly or unfairly.
Here’s an extended quote on the
thought taken from the Wikipedia
pages on On Liberty.
This addresses the question: How
can challenging an idea be
beneficial to society?
First, if any opinion is compelled to
silence, that opinion may, for aught
we can certainly know, be true. To
deny this is to assume our own
infallibility.
Secondly, though the silenced opinion
be an error, it may, and very commonly
does, contain a portion of truth; and
since the general or prevailing opinion
on any subject is rarely or never the
whole truth, it is only by the collision
of adverse opinions that the
remainder of the truth has any chance
of being supplied.
Thirdly, even if the received
opinion be not only true, but the
whole truth; unless it is suffered to
be, and actually is, vigorously and
earnestly contested, it will, by most
of those who receive it, be held in
the manner of a prejudice, with
little comprehension or feeling of
its rational grounds.
And not only this, but, fourthly, the
meaning of the doctrine itself will be in
danger of being lost, or enfeebled, and
deprived of its vital effect on the character
and conduct: the dogma becoming a mere
formal profession, inefficacious for good,
but cumbering the ground, and preventing
the growth of any real and heartfelt
conviction, from reason or personal
experience.
His basic point:
There is never a jutifiable reason to
suppress an opinion.
The marketplace of ideas has to be
open and broad.
If opinions are not accepted in the
marketplace of ideas, maybe it
wasn’t a good one.
Here’s a more recent expression of
that idea:
“Free speech is an indispensable tool
of self-governance in a democratic
society. Concurring in Whitney v.
California (1927), Justice Louis
Brandeis wrote that ‘freedom to think
as you will and to speak as you think
are means indispensable to the
discovery and spread of political
truth.’“ – Rodney Smolla
A second point:
The Tyranny of the Majority
It also ties into John Stuart Mill’s
take on the tyranny of the majority.
Remember that this was also the subject of Federalist
#10. In it James Madison promoted a republic on the
national level because it was likely to break apart the
majority faction so that would be unable to dominate
the legislative process and impose the will of the
majority upon the minority. More specifically it could
not use its majoritarian power to undermine the rights
of the minority.
While Mill was also concerned
about the ability of the majority to
dominate public policy and
suppress the rights of the minority,
he was also concerned about the
ability of the majority to – subtly
(or not) – suppress the tendency of
the minority to speak their minds.
Click here for a website that does a
pretty good job of outlining the
issue:
Here’s a quote from Mill
highlighted by the site:
Protection, therefore, against the tyranny of the
magistrate is not enough: there needs protection also
against the tyranny of the prevailing opinion and
feeling; against the tendency of society to impose, by
other means than civil penalties, its own ideas and
practices as rules of conduct on those who dissent from
them; to fetter the development, and, if possible,
prevent the formation, of any individuality not in
harmony with its ways, and compel all characters to
fashion themselves upon the model of its own.
This points out that in a
democracy, the freedom of speech
does not guarantee that all points
of view will be expressed.
Unpopular opinions can be subtly –
or not so subtly – suppressed.
Attempts can be
made to protect
expression, but
sometimes these
are not sufficient.
Since the Supreme Court began taking the
freedom of speech seriously since the early
20th Century, it has ruled on a series of
cases that have involved this question. It
can be best summarized as:
How do we balance the extent of free
speech against the greater interest of
society?
This is another way of asking: How
does the court determine what
speech is acceptable and what
speech is not?
We turn to that question in the
section on Free Speech and the
Supreme Court.