Free Speech

The emergence of freedom of speech as an essential value of Western civilization is inseparable from the emergence of individual religious liberty in the 17th and 18th centuries. For generations following the Reformation of the 16th century, religious war, mutual fratricide, torture, hatred, and repression had rent the fabric of European society. The needs of civil and political society increasingly seemed incompatible with the attempt to coerce inward belief and outward expression. Further, the consciences of a growing number of Europeans were moved by the seeming contrast between the violence of such coercion and repression, on the one hand, and the claims of religion to be a source of peace and love, on the other. For reasons of practice and conviction, then, the call for liberty of belief and expression grew steadily more compelling for those who saw such spectacle as inconsistent with religion itself, creating a growing desire to find ways to live in societies of more mutual forbearance. The arguments on behalf of that mutual forbearance, however, led logically and in practice to freedom of speech being recognized both as both a necessity of our living peacefully together and a moral end in itself.

Many of the calls for religious freedom initially were meant to apply only within limited but increasingly variegated communities of belief: to Protestants in general, for example; or, an extreme latitude at the time, to those who simply believed in God. As usually occurs with claims for liberty, however, the spirit of the arguments overflowed the initial boundaries envisaged. In societies that believed religion to be mankind’s highest calling and whose members’ greatest pain was occasioned by what they saw as heretical or impious expressions, winning the debate on behalf of liberty in religion—the area where restrictions on speech seemed the most reasonable—carried with it a victory on behalf of freedom of speech in general.

In the midst of the English Civil War, the Parliamentary party attempted to censor the book trade by means of the Licensing Order of 1643. In his Areopagitica (1644), John Milton, although an ardent supporter of the Parliamentary cause, argued passionately on behalf of allowing the full force of free debate to sustain both liberty and truth. Although his opposition to censorship was intended for good Protestants alone, Milton’s soaring defense of freedom of expression established more universal themes. One can choose truth and goodness, he wrote, only where there is “knowledge of evil”: “I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary.” Confrontation with error, he wrote, is essential “to the confirmation of truth,” and that confrontation depends upon “hearing all manner of reason.” Further, what men possibly could be trusted to regulate human discourse? When God gave man reason, Milton urged, “He gave him freedom to choose,” which made human beings morally responsible. To “know” truth because of coercion was without merit, and Parliament would err grievously if it sought, even on behalf of the good, “to suppress all this flowery crop of knowledge and new light sprung up and yet springing daily in this city…to bring a famine upon our minds again.” Any “free and humane government” favored “free writing and free speaking.” Liberty, he wrote, raises the human mind to rare heights: “Give me the liberty to know, to utter, and to argue freely according to conscience; above all liberties.” We need not worry about the strength of truth: “Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?” England, he urged, should be “the mansion house of liberty.”

On the continent, generations of religious warfare and persecution led many thinkers to believe that coerced uniformity and suppression of difference of belief were far more threatening to both the individual human soul and the stability and peace of society than diversity of opinion and freedom of expression. In many of his writings, the great critic, polemicist, and philosopher Pierre Bayle, a Huguenot living in exile in Holland after the revocation of even limited toleration of Protestants in France, argued that suppression of the outward expression of sincere belief, however false, corrupted the human spirit, leading men to a damnable cruelty and hypocrisy. Holland, finely balanced between Catholics and Protestants, permitted the most freedom of speech of any nation in Europe by the late 17th century, out of a prudential concern for what would follow if various claimants to truth had to fight for control of the state in order to have liberty of expression. In his Tractatus Theologico-​Politicus (1670), Baruch Spinoza devoted his final chapter to the proposition that “in a free commonwealth, every man may think as he pleases and say what he thinks.” Because belief was a matter of “individual right…no man may surrender it even if he wishes to do so,” and governments that sought to compel belief were “tyrannical” and therefore unstable and subject to violent overthrow. At the heart of such compulsion was the effort to control expression, and “the most tyrannical government will be that in which the individual is denied the freedom to express and to communicate to others what he thinks.” The function of the state was not “to transform human beings from rational creatures into beasts or automatons,” but, to the contrary, “to enable them to develop their mental and physical faculties in security,” so long as they did not harm others in their liberty and security. In short, “the purpose of the state is, in actuality, freedom.”

Shortly after his return to England from exile in Holland, the philosopher John Locke published a Letter Concerning Toleration (1689), in which he argued that “It is one thing to persuade, another to command,” and “It is only light and evidence that can work a change in men’s opinions.” Locke did not intend for his arguments on behalf of toleration to apply in particular to atheists and Catholics, both of whom, he believed, represented a danger to the state and to society, but, as with Jefferson in the Declaration of Independence, whose “all men are created equal” and whose “life, liberty, and the pursuit of happiness” were far from inclusive claims in the author’s mind, Locke had articulated a principle that had a power to shape the future on behalf of human freedom in general.

The inseparability of the campaign for religious toleration from the emergence of claims on behalf of freedom of speech is seen clearly in the American experience, where the First Amendment of the Bill of Rights (ratified in 1791) first established freedom of religion as an essential right and only then established freedom of speech as such. Arguing in 1776 on behalf of religious liberty in the Commonwealth of Virginia, James Madison urged that “the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.” Madison’s own bill declared that “all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.” With religion considered to be the most important set of truths, freedom there meant freedom of expression on virtually all matters of conscience and importance. Such freedom was, in Madison’s view, among “the natural rights of mankind,” and, thus, beyond the reach of any government.

Writing in support of the fullest possible freedom of belief and expression (absent direct harm to others), the English philosopher John Stuart Mill wrote, in On Liberty (1859), that in order to establish freedom of expression, he would take the most difficult case of all, the right of those who dissented fundamentally in matters of religion, because if he could win the issue there, he had won it for all lesser instances. In making his plea for freedom of belief and expression, Mill essentially established the pole toward which both public opinion and jurisprudence gradually, fitfully, but powerfully would move.

Most people believe that they favor free speech, Mill argued, but in fact, almost everyone sets limits at what they believe to be without value, or dangerous, or just obviously wrong. Why should we favor freedom of expression even to what we consider beyond the pale? For Mill, there were four ultimately compelling reasons, confirmed by history, for supporting “freedom of opinion, and freedom of the expression of opinion.” First, the opinion might indeed be true, and “to deny this is to assume our own infallibility.” Second, the opinion, although largely or almost wholly in error, most probably would “contain a portion of truth,” and censorship would deny us the possible “remainder of the truth” that only could be gained by “the collision of adverse opinions.” Third, even if prevailing opinion were the whole truth, if that truth were not “vigorously and earnestly contested,” it would be believed by most not on “its rational grounds,” but only “in the manner of a prejudice.” Only freedom of expression would permit truth to be embraced by conviction, not by memorization. Fourth, if people were not obliged, by liberty of opinion, to defend their beliefs, truth would be “in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct,” becoming merely a formula repeated by rote, “inefficacious for good…and preventing the growth of any real and heartfelt conviction, from reason or personal conviction.” The negative consequences of the suppression of freedom of speech would fall upon both the individual and the society deprived of strong and daring individuals. In Mill’s celebrated formulation: “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.”

It was not until the 20th century that the U.S. Supreme Court, in a set of quite dramatic decisions, brought the interpretation of the First Amendment’s speech clause—“Congress shall make no law…abridging the freedom of speech, or of the press”—closer to Mill’s sense of such liberty. Originating in cases (and often in minority dissents) involving the rights of protestors opposed to American participation in World War I, a line of Supreme Court jurisprudence vastly broadened the meaning of protected free speech. In Terminiello v. Chicago (1949), writing for the Court, Justice William Douglas noted that the “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In Cohen v. Connecticut (1971), the Court held that emotively powerful and offensive speech was constitutionally protected because outrage or anger “may often be the more important element of the overall message sought to be communicated.” “One man’s vulgarity,” Justice Marshall Harlan opined, “is another’s lyric.” In United States v. Eichman (1990), the Court struck down the Flag Protection Act of 1989, ruling that while “desecration of the flag is deeply offensive to many…the same might be said…of virulent ethnic and religious epithet…and scurrilous caricatures.” In a free society, citizens were free, absent direct harm, to be offensive and scurrilous in each other’s eyes. In R.A.V. v. City of St. Paul (1992), the Court invalidated a city ordinance that sought to protect individuals from expression that “arouses anger, alarm or resentment on others on the basis of race, color, creed, religion or gender.” Writing for the Court, Justice Antonin Scalia stated, “St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules.”

The Court, however, never has taken the “no law” provision of the First Amendment literally. Obscenity, speech posing “a clear and present danger” of imminent violence, and disclosures of information (such as troop or naval movements) deemed threatening to national security all remain unprotected. Nonetheless, the Court has brought the law closer and closer to the spirit of John Stuart Mill’s observation about not only freedom of speech, but also the freedom to act on the beliefs we hold and express: “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental or spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.” The lessons learned during generations of religious fratricide have found a welcoming though always threatened home.