Intellectual Influences on Free Speech Law

Free-speech law in America begins with the state of English free-speech law in the seventeenth century. At that time there were two avenues for state control of speech: licensing and libel. Licensing was a prior restraint on publishing. In order to operate a printing press, one had to obtain a license from the king, who could veto any publication based on content. The early advocates for free speech focused on doing away with this prior restraint of licensing. These included Milton, whose (illegally unlicensed) Areopagitica cautiously argued against prior restraints on four grounds: (1) They are used by parties, such as opponents of the Reformation, who have weak positions; (2) they deprive citizens of the intellectual exercise provided by studying alternative points of view; (3) they do not succeed in preventing points of view from becoming known; and (4) they discourage healthy curiosity. When Blackstone did away with licensing in the late seventeenth century, he believed freedom from prior restraints ensured freedom of speech.

Unfortunately, the law of libel was an even more pernicious restraint on free speech. There were three libels: sedition, defamation, and blasphemy. These made it a crime to criticize the government (sedition), fellow citizens (defamation), or religion (blasphemy). The law of seditious libel was especially notorious; confessions were often obtained through torture and truth was not a defense. Prosecutions were numerous and arbitrary, including that of Thomas Paine for publishing The Rights of Man. Interestingly, the government showed relatively little interest in prosecuting sexual or bawdy speech. As late as 1708, no law existed in England against obscenity.

Many seventeenth- and eighteenth-century thinkers advocated freedom to criticize the government. For example, the natural rights thinkers, such as John Locke, believed that government only existed to safeguard its citizens’ interest in life, liberty, health, and property. When government overstepped its bounds, the people had a right to destroy it. Eighteenth-century Enlightenment thinkers agreed. Thus, criticism of government and institutions is central to the Enlightenment. Locke’s notion of the limitations on civil government were central to the American Revolutionaries, embodied by Thomas Jefferson’s paraphrasing of Locke in the Declaration of Independence (‘‘... life, liberty, and the pursuit of happiness ...’’).

The right to voice a dissenting opinion was obviously important to the colonists. In the 1735 sedition trial of Peter Zenger, Andrew Hamilton persuaded the jury to reject the English common law of sedition by accepting truth as a defense. The Americans’ value of open criticism of government is reflected in the fact that most of the colonies had bills of rights that protected the freedom of speech by the time the constitutional delegates convened in Philadelphia. When the Constitution was submitted to states’ approval and did not include a protection for the freedom of speech, there was a national clamor against it. Elbridge Gerry and George Mason threatened to scuttle the whole thing; Jefferson wrote from Paris that he hoped it would not be ratified without one.

Opponents of a federal bill of rights, such as Roger Sherman, argued that it was not necessary, since the states’ protections of free speech were still in effect, and the new Constitution did not repeal them. However, since the federal Constitution was paramount over state constitutions, George Mason and others wanted a federal guarantee. Other opponents of a bill of rights argued that the constitution did not need one because it was organized with the people as sovereign. Since the people gave up no rights to the government, they did not need to specify rights that they reserved. In fact, a bill of rights might be dangerous. By enumerating specific powers not granted to the government, it would imply that all other powers were granted to the government. This was the position taken by Madison, Jay, and Hamilton in Federalist Papers no. 84, as well as of James Wilson of Philadelphia. Nevertheless, Mason, Gerry, and Jefferson won out and the Bill of Rights and the First Amendment were passed.

Despite the strong protection of the First Amendment, during times of political crisis the right to dissent has often been curtailed because of fear that dissent will incite unrest. For example, during World War I, pacifists were imprisoned for opposing the draft on the grounds that their opposition might undermine the war effort. The lawyer Zechariah Chafee argued that the mere possibility of inciting unrest was not enough to justify suppressing the pacifists’ dissent. In his view, suppressing speech on ‘‘public protection’’ grounds was only valid when the speech posed an identifiable ‘‘clear and present danger,’’ such as yelling for a gunman to pull the trigger. His arguments persuaded Justice Holmes and soon became constitutional law.

Alexander Meiklejohn advocates a theory of free speech that emphasizes the role it plays in keeping the government accountable. Thus, Meiklejohn believes revolutionary agitation is protected by the First Amendment, even if it poses a clear and present danger of inciting a revolution. However, in Meiklejohn’s view, the First Amendment is not concerned with purely private experience and therefore art and fiction are not protected by the First Amendment at all. Nevertheless, Meiklejohn does believe people have a due-process right not to have their private speech curtailed unnecessarily. While his theories are consistent and logical, they lead to such extreme results that they have not met with judicial application.

Classical liberalism takes a laissez-faire approach to speech. Thus, in the nineteenth century, John Stuart Mill argued that complete freedom of speech creates a ‘‘marketplace of ideas.’’ However, recent scholarship has criticized classical liberalism’s laissez- faire take on speech, claiming that liberals are naı¨ve about the effects of power in speech. Thus, Schiffrin rejects the ‘‘marketplace of ideas’’ theory because of its faith in an invisible hand that guides us towards truth. He argues a ‘‘market failure’’ rebuttal: since the rich have more access to media than the poor, an unregulated trade in ideas is inherently unfair. In his view, there should be a positive right for dissenting voices to be heard. Because American law is negative-rights oriented, this position has not taken hold. Other scholars claim that hate speech perpetuates domination by the strong over the weak and should be prohibited. One notable scholar to take this tack was the feminist Andrea Dworkin, who favored a ban on pornography, which she considered an ‘‘antifeminist propaganda machine.’’ Others favor restrictions on ethnic or racial slurs.

CHRISTOPHER D. KING

References and Further Reading

• Dworkin, Andrea. Pornography: Men Possessing Women. New York: Putnam, 1981.
• Hudon, Edward G. Freedom of Speech and Press in America. Washington, D.C.: Public Affairs Press, 1963.
• Meiklejohn, Alexander. Free Speech and its Relation to Self- Government. New York: Harper, 1948.
• Nelson, Samuel Peter. Beyond the First Amendment: The Politics of Free Speech and Pluralism. Baltimore, MD: Johns Hopkins University Press, 2005.

See also Government Funding of Speech; Hate Speech; Low Value Speech; Meiklejohn, Alexander; National Security and Freedom of Speech; Obscenity; Philosophy and Theory of Freedom of Expression; Prior Restraints; Public Forum Doctrines; Red Scare of the Early 1920s; Seditious Libel; Zenger Trial (1735)