Free Speech: A History from Socrates to Social Media

by Jacob Mchangama

So why would a man like Franklin support a practice that silenced the people? The answer lies in a—by modern standards—idiosyncratic conception of popular sovereignty. The assemblies saw themselves as both the people’s representatives and defenders against the executive.

rousing the chattering classes who read pamphlets and newspapers was not enough to produce real change. The Patriots had to get the lowly commoners on board, too. To do so, they made effective use of symbolic speech in the form of parades, flags, political cartoons, emblems, liberty trees, and liberty poles—wooden poles erected as a symbolic protest against tyranny.

Anti-Federalists detected elitist and illiberal attitudes among more conservative Federalists who seemed to think of press freedom in Blackstonian terms and recoil at the idea of “the bulk of the people” participating actively in public affairs, which were better left to their elite representatives.

in America, the people—not Congress—were ultimately sovereign; members of Congress were the servants, not the masters, of those who elected them.

Madison also proposed that “no state shall violate the equal rights of conscience, or the freedom of the press.”97 This mirrored Madison’s fear that state governments would be the worst offenders against free speech, given that these—not the federal government—would be those whose laws and authority Americans were most frequently subjected to. In fact, Madison believed this to be “the most valuable amendment on the whole list.”98 Alas, it was rejected—with fateful consequences for free speech in America.

The Declaration famously declared that “men are born and remain free and equal in rights.”12 But what did the term “men” mean? Did it include Protestants? Jews? Slaves? The non-propertied? Women? The universal language of the Declaration provoked a heretofore inconceivable public discussion of first principles relating to social, racial, religious, and gender equality, both in the National Assembly and in the press.

In July 1791, the legislators passed a decree against “seditious speech,” with the result that several journalists and printers were arrested in what historians like Charles Walton have dubbed the petite terreur. Robespierre objected loudly and referred to the language of Article 12 of Virginia’s Bill of Rights: “The freedom of the press, one of the greatest avenues of liberty, can only be limited by despotic governments” (which had, in turn, been lifted from Cato’s Letters).28 Paying no heed to Robespierre, the National Assembly adopted a constitution and penal code in September 1791, officially defining the legal limits of free speech.

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. He was executed—without trial—on July 28, 1794.

What makes Journey from St. Petersburg to Moscow interesting from a free speech perspective isn’t just the fierce repression it provoked. The book also contains a radical and uncompromising argument for free speech, which includes the now-familiar notion that “freedom of the press is the greatest bulwark of liberty.” The greatest free speech meme of the eighteenth century, which had spread from Cato’s Letter No. 15 in London to the American colonies, had made its way to Russia.

The fact that she banned the complete works of her greatest fan, Voltaire, as “harmful and filled with demoralisation” speaks volumes of Catherine’s complete volte-face. She cemented her backlash against free speech with an edict in October 1796 that established censors’ offices in major towns, closed all private printing presses, and banned the writing, translation, and importation of books without prior licensing.

Historian Jennifer Mori has argued that Pitt and his government actually strove to balance liberty against order so as not to overreact. Some of the most draconian proposals were scrapped, and at any rate, the independence of local magistrates and juries ensured that there were counterweights to Pitt’s crackdown.102 But even if Pitt’s Reign of Terror was nothing like the Terror unleashed in France, and permitted more dissent than in Russia and Prussia, it still amounted to an orchestrated and systematic campaign against political opposition.

In July 1798, Congress 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 Sedition Act paved the way for the prosecution and imprisonment of journalists, editors, and politicians, including a sitting congressman, engaging in political speech and satire—just as Philadelphiensis had predicted eleven years earlier.

Even Vice President Jefferson was investigated for violating the Act and had his mail intercepted, though no indictment was made. With very few exceptions, all those targeted by the Act were Republicans or opposed to Federalist policies, while Federalist newspapers were generally free to use hyperbole and invectives against Republicans—including, of course, Thomas Jefferson.119 Equally shameless was the fact that the Sedition Act was set to expire on March 3, 1801, which coincided with the inauguration of the next president and Congress. In other words, Federalists were not willing to become the potential targets rather than the enforcers of the Sedition Act should they lose political power.120 The partisan

Still, the Sedition Act did not succeed in quelling dissent. In the two and a half years it was in force, the number of Republican newspapers more than doubled.123 Before his untimely death in September 1798, Benjamin Franklin Bache wrote defiantly that his prosecution for seditious libel had only boosted his sales.124 And the 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.

The Peterloo Massacre became a powerful symbol of oppression for democratic reformers throughout the country. The event inspired Percy B. Shelley to write one of his most famous poems, The Masque of Anarchy.

The indefatigable efforts of radicals such as Carlile and the intellectual efforts of Messrs. Mill and Mill seemed to work. After a string of convictions in 1824, the constant barrage of seditious and blasphemous libel prosecutions shrank to a mere sixteen in the period between 1825 and 1834.

The rising uproar over oppressive restrictions on freedom of speech played a part, as did a dawning recognition that the prosecutions were indeed counterproductive, as defendants like Wright and the Carliles used the publicity of trials to read out the offending material and generate sympathy among the masses. As the attorney general later noted, “a libeller thirsted for nothing more than the valuable advertisement of a public trial in a Court of Justice.”

Unlike the radical press, which had been forced to seek sources of finance beyond advertising, this new press model became increasingly dependent on advertisements, and subsidies from proprietors and political parties, which effectively restricted its independence and muted radical voices.

Klemens von Metternich believed press freedom to be the “Scourge of the World.”49 With the aid of Prussia, Metternich succeeded in finally establishing a common press law for all German states under the notorious Carlsbad Decrees of 1819, centralizing prepublication censorship and establishing an investigation commission—a secular inquisition vested with sniffing out “revolutionary machinations.”

Like Spinoza, Madison, and Cato’s Letters, Constant argued that the advantages of a free press far surpassed the uncertain gains of censorship, which would always be liable to abuse.

Throughout the nineteenth century a pantheon of great Russian authors including Pushkin, Dostoyevsky, and Tolstoy were imprisoned, exiled, and/or censored for their writings. Long books, however, were often exempt from prepublication censorship, as these were thought to be read only by scholars and not the general population. Among the scholarly works given the thumbs up by tsarist Russia in the 1870s was Karl Marx’s Das Kapital. The censors concluded that few people would “read it and even fewer will understand it” anyway. Surely, no one would read such a “colossal mass of abstruse, somewhat obscure politico-economic argumentation.”

Press suppression initially declined after the Prussian statesman Otto von Bismarck created a unified German Empire under Prussian dominance in 1871. The Imperial Press Law of 1874, which replaced the various state laws, cemented the abolition of prior censorship and removed all licensing requirements for publishers, ensuring a much more vibrant media environment than before. The most dramatic difference was that every infringement on freedom of the press now had to go through the courts, where the government was far from certain to secure conviction.