Free Speech: A History from Socrates to Social Media

by Jacob Mchangama

turning monsters into martyrs.

For the Athenians, the state did not exist as a separate entity from the people. Free speech was thus an inherent part of the Athenian political system and civic culture, rather than an individual human right protecting one against the state, as we tend to understand it in modern liberal democracies. The Athenians did not have a concept of individual “rights” but rather one of the duties, privileges, and prerogatives of the citizen.

Aristophanes also gave a voice to women who lived under a form of gender apartheid hidden from Athenian public life. In the comedy Lysistrata, women on both sides of the great Peloponnesian War effect political change by denying their husbands sex until they end the war between Athens and Sparta. In fact, the artistic freedom that allowed Aristophanes to pen Lysistrata in the fifth century BCE surpassed that enjoyed by Americans and Greeks in parts of the nineteenth and twentieth centuries. From 1873 until 1930, the United States prohibited the import and distribution of Lysistrata under the anti-obscenity Comstock Laws, and the play was banned during the Greek military dictatorship that lasted from 1967 to 1974.

Democracies may be as oppressive as oligarchies if the right of the individual to challenge the prevailing ideas and morals of the majority is set aside. Safeguarding speech requires checks and balances that are strong enough to temper the fears and passions of a populace such as that which wielded direct political and judicial power in Athens. Once the civic commitment to parrhēsía broke down, the fine line between egalitarian democracy and revanchist mob rule was blurred and those who, like Socrates, offended the deepest convictions of their fellow citizens were at the mercy of popular opinion.

In theory, the popular assemblies held sovereign power. But in practice, the Senate was the most powerful institution in the republic. The Senate could not pass laws, but it would prepare legislation for the popular assemblies with the expectation that it would be ratified. It also controlled finances and foreign affairs.44 In the Senate, political discussions were free and senators would often attack each other viciously. But freedom of discussion was not equal, seeing that senators spoke in order of rank.45 Neither was it possible for just anyone to become a senator. Members were usually selected from a small and self-perpetuating elite.46 In fact, the word “senate” is derived from the Latin word senex, meaning “an old man.” So a group of old, powerful men presided over Roman politics.

Yet there were no Roman equivalents of the Greek terms isēgoría and parrhēsía. Roman free speech was first and foremost exercised in the Senate, by magistrates before assemblies, and by orators before the courts, where, as in Athens, political speech would often be interwoven with legal arguments. For men like Cicero and Caesar, oratory was an essential way to further their political careers. Had Caesar not been a brilliant orator, he may not have become a brilliant general—or dictator.

Whether speech was deemed libertas or licentia often depended on the wealth and status of the speaker and the person being addressed.

In 12 BCE, Augustus had himself proclaimed pontifex maximus, the high priest of Rome. In that capacity—not as princeps—he ordered more than two thousand religious scrolls, pamphlets, and books to be burned.

A few years later, however, secular writing also came under Augustus’s control. Around 6–8 CE, the emperor severely restricted dissent by combining the old Twelve Tables’ prohibition of defamation with the lex maiestatis or law of treason.58 Until this point, according to Tacitus, the law of treason had been limited to actions such as “betrayal of an army, inciting the common people to sedition, or generally, maladministration in public office.

Actions were prosecuted, words were immune.” But the outspoken orator Cassius Severus and his insolent writings against a number of prominent Romans provoked Augustus to widen the scope of the law to include words and writings.

The persecuted had become the persecutor. The Christian emperor Valens unleashed an outpouring of intolerance in the Eastern half of the empire after pagan diviners tried to predict his death in 369. Suspects accused of magic, including a number of philosophers, were tortured and executed, and heaps of secular works on philosophy and law were burned. According to the historian Ammianus Marcellinus, people frantically burned their whole libraries to avoid accusation.

Perhaps the most infamous act during Justinian’s reign was the decision to close the Academy in Athens in 529. The Academy had fostered philosophical teaching for centuries and could trace its intellectual roots back to Plato himself.

According to the prominent modern scholar of Islamic law Mohammad Hashim Kamali, there is strong evidence that the prophet ordered or approved the death penalty in about a dozen cases involving speech and thought crimes like blasphemy, apostasy, treason, and insults against the prophet in satirical writings.

Much credit for the Islamic flowering of knowledge and philosophy goes to the second ʿAbbāsid caliph, Abū Jaʿfar al-Manṣūr, who ruled from 754 to 775. It was he who established Baghdad, which soon became a center of scholarship, as his new capital. He was also the founding patron of the Graeco-Arabic translation movement commencing in the middle of the eighth century, which would help catalyze the rediscovery of classical Greek knowledge that would take place in the West after the turn of the millennium.10 The patronage of al-Manṣūr and his successors enabled the translation of vast amounts of writing, including the works of Greek luminaries such as Galen, Euclid, Ptolemy, Plato, and Aristotle.

Without the active participation of religious minorities, the translation movement could not have taken place. Translations and commentaries on Greek philosophy and science in Syriac and Armenian, the languages of scholarship in Eastern Christian communities, became a crucial bridge between Greek and Arabic scientific culture.13 Nestorian Christians, an Orthodox sect that originated in Syria but was deemed heretical and driven into Persia, played a key role in translating Greek writings from Syriac into Arabic.

The ʿAbbāsids’ contribution to science and philosophy extended beyond translating the words of others. A long list of truly gifted polymaths made great progress in disciplines such as medicine, astronomy, geography, and philosophy during this period. Many of these Muslim thinkers were ethnically Persian or Central Asian writing in Arabic. When the ʿAbbāsid Caliphate began to disintegrate in the early tenth century, the centers of learning spread east beyond Baghdad, to vassal states and territories where ʿAbbāsid authority waned to the point where they only ruled in name, if at all. Rather than being the result of positive recognition of freedoms of conscience and expression—notions alien to the absolutist caliphs—it was this lack of centralized religious authority that proved conducive to the emergence of a number of radical freethinkers.

As philosophical, scientific, and medical works of Greek and Islamic origin were introduced in the West, they became core curriculum at these new universities, radically changing the content of scholarship and challenging traditional Christian preconceptions of the world.49 Students delved into Plato and Aristotle; Aristotle’s influence on European thought became so profound he was simply known as “The Philosopher.”

Competing universities soon realized that they could use Aristotle’s forbidden books as bait to lure curious scholars away from Paris. In 1229, teachers and students went on strike and left Paris in great numbers to protest the killing of a number of students after a student riot.

these cases of repression should not detract from the overall picture that medieval universities were surprisingly open-minded. And as the repeated bans on Aristotle’s natural philosophy show, attempts to keep forbidden knowledge from being studied, taught, and shared often failed miserably. In fact, there are only about fifty known cases of academically related judicial proceedings for erroneous teachings throughout all of the thirteenth and fourteenth centuries.

Monotheism has been particularly effective in advancing the idea of orthodoxy. The word “heresy” has its roots in the Greek word haíresis, which means “choice.” In the Middle Ages, heresy was defined as “an opinion chosen by human perception contrary to holy Scripture, publicly avowed and obstinately defended.”

the Fourth Lateran Council laid down what Moore has called “a machinery of persecution for Western Christendom.

The Arabic translation of ancient Greek literature and its wider dissemination demonstrates vividly that, in the sphere of knowledge and information, cultural cross-fertilization is not only desirable but essential to progress. It provides people separated by culture, geography, and even time the ability to learn from and inspire each other in a positive feedback loop benefitting humankind as a whole. The Western European medieval culture of “poking around” is a powerful reminder of what can be achieved when reason is unshackled from dogma and intellectual curiosity is allowed to roam free, however unsettling to established belief and authority.

Increasing supply and plummeting prices opened print technology up to a vast new audience. According to a cautious estimate, the literacy rate in Great Britain more than tripled from 5 percent in the late fifteenth century to 16 percent in the sixteenth century. The literacy in France and Germany increased to 16 percent from 6 and 9 percent respectively.

The printing press also allowed moral panics to go viral, with consequences that were vastly more deadly than those of twenty-first-century Twitter mobs. The Malleus Maleficarum or Hammer of Witches was a wildly successful witch-hunting manual compiled by two Dominican inquisitors in 1486, which reached its ninth edition within six years.24 Books like the Malleus Maleficarum fanned the flames of witch hunts between the late fifteenth and early eighteenth centuries, in which an estimated forty-five thousand people were executed.

Instead of backing down, Luther upped the ante when he translated and published the New Testament in German in 1522.49 For the first time, ordinary Germans had direct access to the word of God, and thanks to Gutenberg’s printing press, they could buy their own copy for about as much as a common laborer made in a single day.50

For everyone to read and understand the Bible was a cornerstone of Luther’s Reformation. Of course, that presupposed that everyone was literate in the first place, so Luther often stressed the importance of establishing schools to teach children how to read. In the long term, this had the effect of greatly boosting literacy in Protestant countries. Fast-forward to 1900, and the literacy rates in Britain, the Netherlands, and Sweden approached close to 100 percent, while in Catholic countries like Spain and Italy, on the other hand, the rate was still only about 50 percent.

Luther was shocked by the mess he had inspired. He frantically published a new pamphlet, Against the Robbing and Murdering Hordes of Peasants, and urged princes to “smite, slay and stab” the rebellious peasants like “mad dogs.”54 Luther’s incitement to mass murder found a new readership—this time among the embattled German princes. They took his suggestions to heart, and according to some estimates, as many as a hundred thousand peasants were slaughtered as the princes put the uprising down.

Luther attempted to put the genie back in the bottle by stressing that good Christians should heed the Bible verses that emphasized the duty to respect secular authorities, like Chapter 13 of the Epistle to the Romans: “Let every person be subject to the governing authorities; for there is no authority except from God, and those authorities that exist have been instituted by God. Therefore whoever resists authority resists what God has appointed, and those who resist will incur judgment.”61 Christian freedom was the certainty that salvation depended on divine grace and faith in God. You might have the freedom to independently interpret Scripture inside your head, but Christian freedom did not grant you license to follow Luther’s own example of defying authorities to follow your conscience in speech or practice.

Luther’s intolerance became even more extreme in his final years. When he failed to convert Jews to Christianity, he penned the ragingly anti-Semitic pamphlet The Jews and Their Lies. It promoted confiscation of Jewish prayer books and Talmudic writings “in which such idolatry, lies, cursing and blasphemy are taught” and advised that “rabbis be forbidden to teach henceforth on pain of loss of life and limb.” Luther even encouraged his readers to “set fire to their synagogues or schools.”

Continental—and in particular, Catholic—censorship had a basis in late classical heresy laws like the severe Theodosian and Justinian codes mentioned in Chapter 1. They were ideological in nature and aimed at the wholesale eradication of “thought crimes”: wrong ideas that clashed with orthodox doctrine. English defamation and libel laws, on the other hand, were based on older Roman law, such as in the ancient Law of the Twelve Tables that prescribed the death penalty for libelous poems and songs in the Early Republic, and the law of iniuria (a form of defamation with no exact equivalent in modern law).89 English restrictions on speech were adopted piecemeal as a response to specific moral panics or crises rather than as a wholesale attempt to control every word spoken or printed.

Congregation of the Index was later established to streamline the censorial process.105 While its influence drastically diminished over the centuries, the Index was not abandoned until 1966. In the period between 1600 and its final abandonment, it included an estimated 5,200 interdictions.106 And there is no way of knowing how many authors may have self-censored to avoid inclusion.

Transylvania was not the only oasis of religious tolerance in Eastern Europe. In the 1570s, the Commonwealth of Poland-Lithuania became another safe haven for religious dissenters and freethinkers—or, in the view of one Polish cardinal, “a place of shelter for heretics.”126 Poland-Lithuania was an elective monarchy, where the king was appointed by the nobility. When Sigismund II Augustus died childless in 1572, the noblemen had to import a member of another European dynasty and settled on Henry Valois, the younger brother of the French king. To prevent the sectarian bloodshed that had enveloped Henry’s native France, however, a clause on religious freedom was added to the agreement with the new king in 1573.

Crucially, the Warsaw Confederation protected the individual’s freedom of religion—unlike the Peace of Augsburg, which only allowed rulers to choose on behalf of their subjects.

To feed his religious curiosity Akbar established a multireligious “House of Worship” in 1575. Philosophers and priests from all corners of the world—Shiʿites, Hindus, Brahmans, Parsis, Jains, Zoroastrians, Christians, and Jews—were invited to this religious “think tank.”

the famous Dutch tolerance and the freedom of thought and speech that it allowed was based more on pragmatism and necessity than principle. The Dutch Republic was not a secular state with strict separation between religion and politics, so the comparatively high degree of tolerance depended—among other things—on its decentralized political system, and on the large number of different sects inhabiting the same territory.

It’s important to note that like so many others before him, Spinoza’s free speech doctrine was not all-encompassing. He too had his “buts,” since unlimited free speech “would be most baneful.” He put a premium on calm and reasoned intellectual debate and distinguished between criticism of laws based on (permissible) “good sense” and (impermissible) sedition—a problematic distinction, open to abuse, that undermined his otherwise robust “overt acts” theory and raised the thorny question of who gets to determine what constitutes “good sense” and “sedition.” Still, at this point in history, very few shared Spinoza’s degree of commitment to the idea that free speech is a precondition rather than a danger to social peace.

Tired of bickering over taxes and religion, Charles dissolved Parliament in 1629, instituting eleven years of personal rule. During this period, the infamous Star Chamber, a dreaded court of law, became nearly synonymous with the Inquisition among Charles’s detractors.51 In 1634, the Puritan writer William Prynne was put on trial because of his book Histrio-mastix, a thinly veiled attack on the king and his Catholic queen, Henrietta Maria. Prynne was found guilty of seditious libel and sentenced to having his ears cropped, the pillory, imprisonment, and the burning of his books.52 Prynne found himself in a new sadistic drama in 1637, when he was put on trial again, this time for “divers scandalous bookes & libels, against the whole clergie of the kingdome, & against the Government of the Church of England,” and once more sentenced to have his ears cut off.53 Since they had already been reduced to stumps, he also had the letters “S. L.” (for “Seditious Libeller”) burned into his cheeks.

That Milton—the scourge of censors—would become a licensor himself is indeed one of the great ironies of the history of free speech.

It is surely one of the injustices of the history of free speech that Milton—for all his importance and eloquence—should be remembered as the great seventeenth-century champion of free speech, while most have forgotten the names Lilburne, Overton, and Walwyn.

In exile, Locke penned his famous Letter Concerning Toleration in 1685. It was first published anonymously in Latin in Gouda in 1689, with a subsequent English translation published in London. The Dutch air had a radicalizing effect on Locke, whose views developed from an almost Hobbesian position arguing for religious unity as essential for social peace to asserting in his Letter that “neither Pagan, nor Mahumetan, nor Jew, ought to be excluded from the Civil Rights of the Commonwealth, because of his Religion.”

London coffee houses were egalitarian in nature. What mattered was the intellectual input you brought to the table—not the size of your wallet nor the purity of your bloodline. They became known as “penny universities,” because anyone could enter an informal institution of knowledge for just one penny—the price of a cup of coffee.

Lord Chief Justice John Holt explained the deeply elitist rationale for the crime of seditious libel in 1704: “If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist.”22 Moreover, since a Star Chamber case from 1606, truth did not constitute a defense for libelers of the government.

The most prominent—or, to traditionalists, utterly repugnant—work to receive Malesherbes’s stamp of approval was the Encyclopédie edited by Diderot and Jean le Rond d’Alembert. Their ambition was nothing less than compiling all of the knowledge in the world.55 The main contributors to the Encyclopédie met at Baron d’Holbach’s salon in rue Royale to discuss new texts, philosophy, politics, and the latest news. These “Sheikhs of the rue Royale” included a who’s who of French Enlightenment thinkers like Marmontel, Raynal, Turgot, and Rousseau, as well as visiting foreigners like Cesare Beccaria, Adam Smith, Edward Gibbon, and David Hume. Irreverent conversation abounded at d’Holbach’s salon. Hume, unsettled by their frankness, once told d’Holbach that he had never met an atheist and did not believe they even existed. The baron pointed to the eighteen people present and replied: “Monsieur, count how many of us are here.… It is a good start to be able to show you fifteen straight away. The other three haven’t yet made up their minds.”

The free speech doctrines of Voltaire and Diderot might have been imperfect and inconsistent, but both argued for relaxing rather than tightening censorship. Rousseau essentially argued for the establishment of a new orthodoxy with no room for heretics. A position ominously close to that which would justify the Terror, once the Revolution spiraled out of control three decades later.

The Swedish Freedom of the Press Act was a watershed moment in the history of free speech. Such a firm protection of free speech did not exist anywhere else on earth. For all their liberality, neither the Dutch Republic nor Britain had adopted specific laws that positively protected freedom of speech. Another groundbreaking feature of the act was that it protected freedom of information—extensively so. Most documents and minutes from the courts, public authorities, Diet, and even the executive were now accessible to the public.

Nowhere was as unforgiving as Puritan New England. The—sometimes violent—religious intolerance of Charles I had driven many Puritans to leave the motherland and settle New England in the 1620s and ’30s. But once they reached America, they had little sympathy for what one leading Puritan called “the lawlessness of liberty of conscience.”

Taking a page out of Cato’s Letters, he argued that “the Words themselves must be libelous, that is, false, scandalous and seditious, or else we are not guilty.”

Hamilton asked the jury to disregard established common law and declare truth a defense to seditious libel.

Hamilton’s words appealed to jurors who he knew had read and discussed the Journal’s punchy free speech advocacy lifted from Cato. After brief deliberations, the jury chose to acquit Zenger—“Upon which there were three Huzzas in the Hall, which was crowded with People.”39 The verdict was a milestone for press freedom in America. Legally, the common-law crime of seditious libel stood intact, with no defense of truth. But in practice, the act of jury nullification all but ended seditious libel prosecutions in colonial courts.

Unfortunately for Smith, his petition was opposed by the official agent of Pennsylvania’s assembly in London: Benjamin Franklin, the same Silence Dogood who had once argued that “freedom of speech is a principal pillar of a free government” without which a “free society dissolves” and “tyranny is erected on its ruins.” Struck by Milton’s Curse, he was now vigorously defending legislative privilege in a case that historian Leonard Levy denounced as a “mock trial before a kangaroo court” worse than Star Chamber justice.