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January 01st 2012 print

Richard Allsop

The Difficult History of Free Speech

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

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

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

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

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

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

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

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

In the modern world, England became the leader in liberalising freedom-of-speech laws. While many writers hark back to the signing of Magna Carta in 1215, real progress began in the seventeenth century, particularly with the Petition of Right (1627), which meant that, at least in theory, no person could be arrested solely for disagreeing with the government. It is no coincidence that the period of enormous political upheaval in the lead-up to the Civil War saw the first recorded use of the expression “freedom of speech”, by Sir Edward Coke in his Institutes of the Laws of England (1628–44),

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

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

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

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

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

Of course, the debate about freedom of speech is not just about political speech. In the third quarter of the twentieth century a lot of the debate about free speech in many countries related to the removal of censorship of previously banned works, in England most famously relating to D.H. Lawrence’s novel Lady Chatterley’s Lover. On the fiftieth anniversary of the 1960 trial Geoffrey Robertson wrote that of all Old Bailey trials “none has had such profound social and political consequences as the trial in 1960 of Penguin Books for publishing Lady Chatterley’s Lover”: 

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

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

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

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

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

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

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

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

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

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

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

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