Due Process and Free Speech – Part 2
The history of free speech and its lessons for today.
A nice history of free speech is laid out by Jacob Mchangama in his book Free Speech: A History from Socrates to Social Media.
Several decades after the concept of “due process” came to be developed in the 1610 case of Dr. Bonham (as we saw in the previous essay), the idea of “free speech” began its conceptual journey. As Mchangama writes:
One of the clearest voices was that of the Deist freethinker Matthew Tindal, who had insisted in his 1698 Letter to a Member of Parliament that “Men have the same right to communicate their Thoughts, as to think themselves.” … Unsurprisingly, the works of Tindal were burned in 1710 on orders from the House of Commons.
A decade later came “the most influential argument for free speech,” namely:
a series of letters published in the London Journal between 1720 and 1723. Known as Cato’s Letters, they were authored by the Radical Whigs John Trenchard and Thomas Gordon, who took their pseudonym from the Roman senator Cato the Younger, who had become a martyr for republicanism and free speech under Caesar … [Cato’s] Letter No. 15 … was dedicated to the issue of free speech. Written by Gordon, it opened with this stirring salvo: “Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech.” A few paragraphs later, Gordon wrote the now-iconic words: “Freedom of speech is the great bulwark of liberty; they prosper and die together … Cato’s Letters became wildly successful, especially in colonial America. “From Boston to Savannah” it became nearly impossible to open a newspaper without encountering reprints, quotations, or discussions of the essays. The metaphor of free speech as the “great bulwark of liberty” found its way into Virginia’s famous Declaration of Rights, James Madison’s initial draft of the First Amendment, speeches of French revolutionaries, and even the writings of Russian radicals … The Virginia Declaration of Rights was ratified on June 12 [1776] -- almost a month before the Declaration of Independence. Section 12 elevated Cato’s Letters to state law: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.”
(Cato’s Letters argued not only for free speech, but for transparency in government, so the actual operations of government could be subject to criticism. Letter No. 15 stated “And as it is the part and business of the people, for whose sake alone all publick matters are, or ought to be, transacted, to see whether they be well or ill transacted; so it is the interest, and ought to be the ambition, of all honest magistrates, to have their deeds openly examined, and publickly scanned …”.)
John Adams said that the American Revolution was not won primarily with guns, but with arguments. As Mchangama writes:
In 1815, eighty-year-old John Adams reflected on the American Revolution in a letter to his old friend and sometimes bitter rival, Thomas Jefferson: “What do we mean by the Revolution? The war? That was no part of the Revolution; it was only an effect and consequence of it. The Revolution was in the minds of the people, and this was effected, from 1760 to 1775, in the course of fifteen years before a drop of blood was shed at Lexington.” To Adams, the decisive battlegrounds of the Revolution had not been Lexington or Yorktown, but newspapers and pamphlets. The battles had not been fought with guns and steel, but with pens and paper.
America’s early culture of free speech was intimately intertwined with its culture of democracy. As federal appeals judge Laurence Silberman has said:
The history of the First Amendment is fascinating. The phrase “freedom of speech” first appeared in the Anglo-American tradition in the English Bill of Rights written in 1689. It only protected the expression of members of Parliament. This was so because, in the English tradition, Parliament, not the general population, was the source of sovereignty. Our Founders extended that right to all citizens, because here the people rule as sovereign …
Whereas America adopted the First Amendment to its Constitution (stating “Congress shall make no law… abridging the freedom of speech, or of the press”), in a speech to the National Convention in February 1794, Robespierre was taking the French Revolution in the opposite direction. As Mchangama explains:
Robespierre stressed the need to terrorize “the enemies of liberty,” including “mercenary libellists paid to dishonor the cause of the people, to smother public virtue, to fan the flame of civil discord, and bring about a political counter revolution.” The man who had been a protolibertarian in 1791 now grew paranoid and began executing potential rivals. The infamous Law of 22 Prairial (June 10, 1794), also known as the law of the Great Terror, condemned to death “enemies of the people” who were found guilty of “disparaging the National Convention and the republican government”; “calumniating patriotism”; “spreading false news”; “misleading public opinion”; “corrupting the public conscience”; and “impairing the energy and purity of revolutionary and republican principles.” … The Terror came to an end when Robespierre was toppled by a conspiracy of deputies who all feared they were next in line for the guillotine.
(Note that, as free speech and due process are intimately related, Robespierre, having renounced free speech, was subsequently executed, without a trial, on July 28, 1794.)
Free speech can only be maintained if a critical mass of its citizens live in a culture that supports free speech as a fundamental right. As Mchangama writes, “Comparing events in France after 1789 and in America after 1798 raises the question of what truly ensures the entrenchment of free speech as a principle. Is the key to its endurance the wording of constitutions or declarations? Or is it a nation’s commitment to a culture of free speech and the tolerance of the controversies, offensive ideas, and very public disagreement about fundamental values that inevitably arise from this freedom?” Whereas there was no free speech tradition in pre-revolutionary France, “In contrast, a critical mass of Americans had internalized the idea of dissent as natural and beneficial by 1798. Not least because they had in effect wrestled away the British colonial authorities’ ability to punish seditious libel in the previous decades. Americans had thus become accustomed to a much more vibrant public sphere, where different views clashed openly in taverns and on the pages of pamphlets and newspapers, as reflected in the uncompromising language of the First Amendment.”
John Stuart Mill would also later make the same point. Mchangama writes:
Mill … expressed grave concern about the stifling effects of the social norms that pervaded Victorian England. He warned not only against the “tyranny of the magistrate” but also the “tyranny of the prevailing opinion and feeling” and society’s tendency to “impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them.” It was a powerful endorsement of the importance of establishing a culture of free speech permeating both law and civil society …
Decades earlier, the famous French keen observer of America in the 1830’s, Alexis de Tocqueville, would express the same worry about America:
Tocqueville knew of “no country in which there is so little true independence of mind and freedom of discussion as in America.” Only the “excessive dissemination” of newspapers, the number of which “surpasses belief,” prevented the power of public opinion from subverting American freedom and democracy. Because of the decentralized nature of the American press, “neither discipline nor unity of design can be communicated to so multifarious a host,” and therefore, “they cannot succeed in forming those great currents of opinion which overwhelm the most solid obstacles.”
Note that, to Tocqueville, the only thing stopping the relentless drive toward accepted dogma among the people was the “excessive dissemination” of contrary opinions, a failsafe that’s only possible when a culture of free speech prevails, which has almost always been a tenuous situation. From its earliest days, American political leaders, like Robespierre, were not immune from free speech hypocrisy themselves. As Mchangama recounts:
In July 1798, Congress [controlled by President John Adams’ Federalist Party at the time] passed the Sedition Act, which made it a crime to: “write, print, utter or publish … 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 … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.” … The fiercely partisan nature of the act was demonstrated by its omission of the vice president. That office was held by Thomas Jefferson, whom Federalists had no inclination to shield against the coordinated smear campaign in the Federalist press, where he was accused of atheism, being drunk with subversive French philosophy, and moral corruption … Even Vice President Jefferson was investigated for violating the Act and had his mail intercepted, though no indictment was made.
The political pendulum soon swung back, as it always seems to, but President Jefferson resisted the temptation to exact revenge on his political enemies by suppressing their speech in turn:
[T]he Federalists were utterly trounced in the elections of 1800, losing the presidency—with Jefferson defeating Adams—and both houses of Congress to their Democratic-Republican opponents, not least because of popular backlash against the heavy-handed methods of the Sedition Act … Instead of owning the [Federalist political party], Jefferson resisted the alluring pull of censorship and struck a unifying and bipartisan note in his first inaugural address: “We are all republicans: we are all federalists. If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.” … It was a powerful appeal to unity that views free speech as the precondition for social peace rather than a vehicle for treason and strife.
But even the initially magnanimous Jefferson failed to resist the temptation to suppress the opposition’s speech for long. As Mchangama writes:
Like Washington and Adams before him, President Jefferson quickly found himself the target of newspaper smear campaigns. In a private letter he complained that Federalist newspapers undermined press freedom “by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit … A few prosecutions of the most eminent offenders would have a wholesome effect in restoring the integrity of the presses.” There were even a few libel cases in which defendants were prosecuted for defaming Jefferson under state laws -- some initiated with a nod and a wink from Jefferson himself.
Government officials are particularly subject to criticism because they often have the power to impose restrictions on other people, and at the same time that power over people can lead even the most principled politician to abuse that power by restricting criticism directed at them.
Judge Laurence Silberman, in a speech at Dartmouth College, recounted some more recent, and more hopeful, examples, of American politicians with the strength to remain consistent supporters of free speech, even when it hurt them politically. Silberman mentions President Lincoln’s admirable refusal to be the judge in his own case of speech critical of him, even in the midst of a Civil War:
Perhaps most astonishing is the degree of Lincoln’s tolerance of free speech even during the bloody Civil War. He did strain the First Amendment on occasion, but given the threat to the nation, it is amazing how tolerant Lincoln was of fierce criticism. For instance, he announced that the arrest of Vallandingham, a southern sympathizer, was wrong if that arrest was based purely on Vallandingham’s criticism of Lincoln. In instructions to his general in dealing with Northern civilians aiding Confederate guerrillas, Lincoln explicitly directed Gen. Ewing to only arrest individuals or suppress assemblies or newspapers if they were working “palpable injury to the Military” and that “in no other case will you interfere with the expression of opinion in any form.”
Silberman then discusses President Eisenhower’s similar impulses:
My class at Dartmouth entered in the fall of 1953. The previous spring Dwight D. Eisenhower spoke at commencement. He implicitly attacked Joe McCarthy and McCarthyism, admonishing students: “Don’t join the book burners.” Consider the context of Eisenhower’s speech: we were in the midst of a Cold War with the Soviet Union, over 50,000 American men had been killed in Korea, and there were indeed prominent pro-communist traitors in our own government, as well as in allied governments. Nevertheless, speaking extemporaneously, Eisenhower courageously said, “How will we defeat communism unless we know what it is and what it teaches and why does it have such an appeal to men, why are so many people swearing allegiance to it? ... And we have got to fight it with something better, not try to conceal the thinking of our own people … They are part of America. And even if they think ideas that are contrary to ours, their right to say them, their right to record them, and their right to have them at places where they are accessible to others is unquestioned, or it isn’t America.”
As Greg Lukianoff, the president of the Foundation for Individual Rights and Expression (FIRE), has warned, “Free speech culture is more important than the First Amendment … It’s what informs the First Amendment today -- and it is what will decide if our current free speech protections will survive into the future.”
In the next essay in this series, we’ll explore the challenges to free speech that were posed in the era of American slavery, in Hitler’s Germany, and in our current age of social media.