How Did Free Speech Get Here?

It was a good day for our public discourse when, on the popular public talk show Firing Line, conservative intellectual William F. Buckley had a conversation with avant-guard Beat poet Allen Ginsburg. On 17th May 1968, they argued about free speech in a way that at first glance appears familiar to us. Ginsburg argued for the expansion of “political speech” to include some types of poetry, and mocked the notion that certain writers, like Henry Miller, were subversive (Miller was banned in America until the 1960s, and Ginsburg’s own poem “Howl” was initially deemed obscene, and thereby beyond first amendment protection). What is interesting about this conversation is not merely that it was someone on the left who argued for greater speech rights, but that there was a time when such an argument actually had legal and political stakes.

Despite what stories on many college campuses may indicate, in America today no effectual political disagreement about free speech is possible. During a century of broad interpretations and highly liberal—and I mean classical liberal—decisions on free speech, the Supreme Court has created a near free speech absolutism, which is alien to the Anglo-American tradition. This process, through which expansive judicial decisions have given the first amendment a scope unprecedented in our common law tradition, bears some responsibility for our contemporary political confusion, in which conservatives have become quasi-classical liberals in regard to speech, and liberals have become supporters of censorship through means outside the law.

By classical liberal, here I understand those who, directly or indirectly take their philosophy of the state, human nature and free speech from John Stuart Mill’s On Liberty. That is, they believe the state should not infringe on the individual when the individual is not causing anyone direct harm, that intellectual censorship is harmful, and that an open intellectual society benefits us. I regard the classical liberal position on the freedom of speech today as one that accepts the legal limitations on free speech, such as libel or the advocacy of violence, but believes viewpoints should not be censored, that hate speech prohibitions are highly questionable if not flatly wrong, and which, ethically speaking, thinks these freedoms are both good in themselves (for freedom is an end unto itself) and a means for producing a more tolerant and reasonable society in the long run. It also regards attempts to determine boundaries of acceptable and hateful speech as inherently suspect and almost guaranteed to produce more harm than good.

The classical liberal, then, should feel right at home today in America. While there are some small restrictions on speech today—you can’t produce child pornography, libel someone, directly promote an act of violence—you can say virtually anything you want, no matter how hateful. In principle, across America you can make any argument, endorse any position and state whatever you believe. If this seems unsurprising, it should not: this is a recent development of expansive decisions and courtroom classical liberalism.

English common law did not allow such broad freedoms. As the eighteenth-century jurist Sir Blackstone writes in his Commentaries on the Laws of England, while “the liberty of the press is indeed essential to the nature of a free state … this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” The English government did not recognize the individual freedom to make any argument or say anything as long as it was not obscene or likely to cause violence. Indeed, “To punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order of government and religion, the only solid foundations of civil liberty.” According to Blackstone, one could be punished merely for expressing dangerous or offensive views. On this basis, Donald Trump could have easily been jailed. Atheists too, who express views that could hurt religion, would have been at risk of punishment. Similarly, Marxists, anarchists, neo-Nazis any anyone else with truly radical views would be endangered.

For most of US history, the Supreme Court did not uphold our contemporary understanding of free speech. Originally, the first amendment was only a check on Congress and did not apply to the state governments. It was only made applicable to the states during the twentieth century when the fourteenth amendment was interpreted to make the first amendment restrict states as well as congress. But the post-Civil War Supreme Court did not initially interpret the fourteenth amendment this way. In the Slaughter House Cases of 1873, an early fourteenth amendment case, the Court rejected a more expansive reading of the fourteenth amendment, which could have allowed the first amendment to apply to the states. As late as 1907, the Supreme Court in Patterson v. Colorado left it undecided whether the freedom of speech was “protected from abridgments on the part not only of the of the United States, but also of the states.”

It was only in the twentieth century that the Supreme Court slowly made the first amendment the powerful and nationally pervasive freedom we assume today. And when it did so, it could not draw upon a history of English common law or a history of national precedent for the first amendment—for neither existed. In one of the original first amendment cases in 1919, the Court upheld a conviction because speech was “intended to provoke and to encourage resistance to the United States in the war.” But the later holding Brandenberg v. Ohio (1969) required that there actually be a likely event of violence in the here and now. The contemporary doctrine, seen in the recent Supreme Court case Reed v. Town of Gilbert (2015), that prohibits laws from targeting speech because of the content itself, is the consummation of classical liberalism in law. Speech can now never be prohibited based merely upon the message or idea expressed. Today’s first amendment jurisprudent is so classically liberal that some of the Court’s most famous phrases—such as “one man’s vulgarity is another man’s lyric” in Cohen v. California (1971)—sound as if they had come straight out of John Stuart Mill.

Classical liberals who believe that free speech is the vehicle of human progress did not win the political battle by convincing other people of their views. They won because the Supreme Court engaged in decades of undemocratic expansive interpretations. The result is that in America today the only legally acceptable philosophy of speech is the ultra-Millean.

To give one indication of how poorly this historical development is appreciated: classical liberal free speech advocate Jordan B. Peterson likes to say that compelled speech is unprecedented in the history of our legal system. To his chagrin, the sentence in first amendment jurisprudence that made compelled expression all but illegal in the US—“No official high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein”—was a reversal of earlier precedent established in Minersville School District v. Gobitis (1940).

As a result of twentieth-century first amendment jurisprudence, no experiments in speech policy are possible because now all public entities must conform to a classical liberal orthodoxy on the first amendment. This prevents any serious non-academic debate about the ethics of free speech. Perhaps John Stuart Mill is wrong about human beings and about speech. Perhaps, in some localities at least, there should indeed be some restrictions on radical or racist ideologies, which could harm us in the long run and from which we, perhaps, need the State’s protection. The Court prohibits such a viewpoint from becoming politically actionable. No county or state can experiment with more restrictive policies for the apparent benefit of young people, to fight racism, or in defense of religious views. Everyone must act in accord with the classical liberal theory that more speech is good.

And so, conservatives, who are generally philosophically inclined to preserve precedent, must now unnaturally advocate a liberal attitude towards speech. Progressives, in order to promote anti-racism, anti-sexism and tolerance of any kind must resort to de-platforming, shaming, political correctness and other non-legal means. It is possible that if first amendment law had not developed so liberally, conservatives would have developed a more liberal attitude towards speech and progressives would still promote non-legal means of silencing dissent. But the uncompromising nature of our Constitutional law forecloses all legal experiments, thus giving today’s conservatives and progressives no other options.

To be clear – I personally believe that, at least in this era of Western society, expansive free speech can make us better. But if this theory is anything more than ideology, it ought to be tested against contrary theories in historical experiment. It would be useful to see the results of somewhat more restrictive policies on free speech. Unfortunately, the Court, apparently in service of a doctrine that promotes different viewpoints, has outlawed the political consequences of every philosophy of free speech other than the one I happen to hold.

The answer certainly is not for the Court to equally undemocratically begin to limit the freedom of speech based upon untested philosophical presuppositions. But we should caution the Supreme Court against continuing to expand first amendment rights, irrespective of precedent. Unfortunately, I do not believe the Court, even the conservative court, will be constrained on this point. The Janus decision demonstrated that the conservative majority is willing to disregard clear and long-standing precedent for policy ends—to engage in blatant first amendment judicial activism. If this continues, conservatives will increasingly adopt an unconservative view of speech, and progressives will increasingly resort to political correctness to achieve ends that the classical liberal law has foreclosed.

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7 comments

  1. There is nothing inherently undemocratic about court decisions enlarging (or for that matter restricting) the scope of free speech. In Western style political systems the courts have long been a forum in which the limits of the law have been tested, and in the British common law tradition it has largely been the decisions of judges and juries that have both reflected the the trends of opinion in society and moved society in one direction or the other. The author here thinks there is something undemocratic (and thus questionable or objectionable) about the US Supreme Court enlarging the scope of the First Amendment (covering freedom of both religion and expression), but that was pretty much how the scope of freedom of speech and the press was enlarged in Britain, in the course of a series of court cases against newspaper editors and pamphleteers in the early 19th Century – but which were mostly won by the defendants, as recounted in Ben Wilson’s studies, The Laughter of Triumph: William Hone and theFight for a Free Press (Faber 2005) and What Price Liberty? How freedom was won and is being lost (Faber 2009).

    Until the passage of the Obscene Publications Act in 1857 there was no legislation covering speech and expression in Brtain, only the Common Law offences of obscene, criminal and seditious libel. Actions under these were rare, however, and usually brought by “concerned citizens” such as the early C19 Society for the Suppression of Vice (busybodies, as the defendants saw them) rather than the state. But since the cases were heard in an open court, often before a jury, the decision could go either way, depending on the evidence presented and the public mood at the time. As the trial of Socrates reminds us, this situation is not so different from that in ancient Athens. We should really be thankful that the law and the courts are there to protect us from the ideological excesses of politicians and the frenzy of crowds; in Australia a few years ago, it was the court that protected a couple of harmless students against the ideological zeal of the so-called Human Rights Commission, determined as it was to persecute them under the provisions of the notorious Section 18C of the Act for “hate speech”. For a broader history of free speech in the Western world, see Chris Berg, In Defence of Freedom of Speech: Fram Ancient Greece to Andrew Bolt (Melbourne 2012).

  2. Thank you for this – as a re-reading of the history of free speech in the common law tradition, it came as something of a surprise to me, and there’s a lot of interesting material here that I wasn’t aware of.

    Since you know the sources much better than I do, I’m wondering whether you think it would be possible to claim (in response to the narrative you present) that there was also always a strain within the common law tradition that did take a ‘classical liberal’ view of the freedom of speech. You often mention precedents that were overturned, and stress the precedents; but the overturnings are also part of the tradition, weren’t they? (And they eventually won out.) I wonder if it’s possible to read even the pretty frequent and clear departures from the classical liberal view as ultimately a betrayal of a principle that has always had a major presence (explicit or not) in the liberal tradition. It may seem a strange thing to say, but I’m not sure lots of examples of people failing to uphold a principle is necessarily a sign that that principle doesn’t exist, or even that it doesn’t have widespread support…

    Also, although I very much enjoyed the historical side of this, I do have some concerns about what you’re arguing here. Would I be simplifying it beyond all recognition if I said it was something along the lines of, “The fact that we have no legal restrictions on speech just opens the door to more social sanctioning, so maybe we should have fewer legal restrictions”? If so, I’m not sure that’s an argument we’d make about anything else. For example, nobody would say, “The fact that homosexuality isn’t illegal any more just means that people resort more to social sanctioning, so maybe we should make it less legal.” For a start, that seems implausible as an empirical claim (or even something that time has proven wrong); more importantly, though, if people did resort to more social sanctioning for something that we don’t think is wrong after we’d made it legal, well, that would be something to combat, wouldn’t it? So I guess my position is, “Laws against free expression are bad, and so is social sanctioning that stifles open discussions.” Which I think is basically J.S. Mill’s position (you’ll recall that he emphasized that free expression was a matter of social norms, not just a matter of legality). We need to fight restrictions on speech at BOTH the legal and the social levels, in my humble opinion.

    Finally, I sort of see what you’re getting at when you say “we should be able to learn how it goes when the free speech laws are different” – but I would argue that we already have more than enough evidence, from most of human history, including in what are now liberal democracies, that things don’t go so well when speech is suppressed. Again, compare something else we’re pretty sure is bad, like murder: do we need to loosen murder laws to get more information about how things turn out? (Obviously, that’s a dramatic example, but the form of the argument looks the same to me.)

    Cheers

  3. The Liberal Law has not always had concrete standards that never change. Since the law constantly evolves, who is to say which stage along that evolution is correct? The current free speech laws are absolute, but these could simply be a step backwards; a devolution, if you will. If this is true, perhaps we should abolish these laws.

    The same argument can be made for pedophilia/age of consent. They have not been constant and perhaps they too, need to be reverted to an older law which is somehow better suited for today’s society. 1275 when the age was 12? No, that’s too young. 1865, when the age was 13? Hmm maybe. Due to the classical Liberal Law being too robust, social justice warriors must advocate on behalf of the pedophiles with activism and rallies, since they too have been unfairly ostracized due to the Liberal law (I’m sure you are aware of them adding pedophiles to the LGBTQ+ community). And those pesky, strict conservatives need to realize that laws constantly change so perhaps their conceptions of pedophilia are outdated. I suggest a reform to all laws these so-called “Classical Liberals” hold sacrosanct. After outlawing murder, they have totally shunned debate on whether such a law is actually just. The supreme court should open up debate on this issue, after all, there are instances when it is just, when murdering a witch! or the modern day equivalent; when a POC murders an oppressor (read, white person).

    1. uh, dude, did you read his piece? Like when he says “In principle, across America you can make any argument, endorse any position and state whatever you believe. If this seems unsurprising, it should not: this is a recent development.” and “For most of US history, the Supreme Court did not uphold our contemporary understanding of free speech.” Or “Originally, the first amendment was only a check on Congress and did not apply to the state governments….” He doesn’t mention it, but of course one of the first things these classical liberal adherents did when they gained power was pass incredibly restrictive legislation on expression like the “Alien and Sedition Acts”. I think you might need to give this piece another read. You seemed to have missed just about every point he made, and made fairly clearly.

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