History

The Evolution of (Free) Speech

Evolutionary scientists have identified that the most distinguishing feature of human beings (Homo sapiens) is their capacity for complex language. It is still not clear when this capacity developed. Theories about when the spoken language began to emerge range from 100,000 to over one million years ago. The development of written language is better chronicled but not without historical debate. Recent archeological discoveries date proto-writing or pictographic language, the precursor to writing systems, to nearly 10,000 years ago (the 7^th millennium BC). Written language systems emerged in the fourth millennium BC. The first known examples were Sumerian, a cuneiform (or pictographic) language used in southern Mesopotamia, and Egyptian hieroglyphics, each dating from around 3200 BC. Both languages coincide with the rise of the earliest human civilizations. It is likely that written language also developed independently in the Indus Valley (2200 BC), China (1200 BC), and Mesoamerica around 600 BC, among other places, although historians debate whether these may be connected to earlier developments.

Over time, opposing forces arose. On one side, individuals wanted to express ideas and opinions in written form; on the other side, rulers wanted to control such expression to maintain their power and their control over society. The Greek epic poet Homer (ninth or eighth century BC) supported free expression without hindrances. Pericles, Athens’s most important statesman during its Golden Age (fifth century BC), extolled freedom of speech as the defining distinction between the world’s first citizens’ democracy, Athens, and its enemy, Sparta, a military dictatorship. Yet, even Athens restricted speech. Its first great lawmaker, Solon, banned “speaking evil against the living and the dead.” And after the Peloponnesian Wars, Athens’s Assembly sentenced the philosopher Socrates to death by poison as punishment for corrupting youth, encouraging them to question authority, and lecturing about unrecognized gods.

Copernicus and Galileo vs. the Vatican

Until the Enlightenment in Europe of the seventeenth and eighteenth centuries, censorship was the dominant practice of states and governments. Autocrats generally forbade any questioning of their policies, their behavior, or their right to rule. Such public questioning led to the gallows or worse. In mid-fifteenth century Europe, Johannes Gutenberg's introduction of the printing press using movable type allowed for the mass production of books and prompted rulers to impose further controls on publishing. The Vatican became the main enforcer of censorship. The Catholic Church's Congregation of the Index, first published in 1559, was a long list of printed books banned for reasons of heresy. One such book was Nicolaus Copernicus's De revolutionibis orbium coelestium (“Regarding the revolutions of the heavenly spheres”), published in 1543, because it challenged the Church's belief in a stationary, or geocentric, earth. The great scientist Galileo Galilei (1564–1642) was sentenced to life in prison because he confirmed Copernicus's theories of planetary motion around the sun. Galileo's sentence was commuted to house arrest without visitors when he knelt before the pope to recant his belief in Copernican theory. Galileo’s forced recantation of De revolutionibis and the banning of his own books dampened scientific inquiry and discovery for a century.

The Star Chamber

During the Protestant Reformation, monarchs who broke from the Vatican's authority found a need for censorship themselves. In Britain, Henry VIII and his daughter Elizabeth I were in mortal conflict with the Vatican, which attempted several coups and plotted assassination attempts on the Tudors after Henry VIII established a national church. Both Henry VIII and Elizabeth I banned books that were opposed to the Church of England. They invoked the Court of Star Chamber (a palace court supplanting regular English Courts) to repress “slander.” Elizabeth I also appointed the “Master of the Revels,” who was responsible for censoring public presentations at her direction. Among the most famous acts of censorship is Elizabeth I’s order to eliminate the abdication and assassination scene in William Shakespeare's Richard II because she interpreted the scene (not without justification) to invite comparison between her and the weak Richard II. The Catholic Stuarts who succeeded Elizabeth I tried and failed to restore Catholicism in Great Britain. For them, the Court of the Star Chamber was used to suppress political dissent and to control the licensing of printers. When Charles I raised an army against Parliament, the latter abolished the Star Chamber in 1637. Victorious in the English Civil War, however, Parliament reinstituted press controls through the Licensing Act of 1643. Its strict restrictions on what materials could be legally published gave rise to a heated debate on free speech.

Milton's Areopagitica: A Seminal Text on Free Expression

John Milton, best known for his epic poem Paradise Lost, entered the fray with the political essay Areopagitica, in which he carefully laid out arguments against the Parliament’s adoption of the Licensing Act in favor of unfettered licensing. His main argument, novel at the time, is today basic to our understanding of freedom of expression: “Truth is most likely to emerge in a free and open encounter.” While Milton’s view was rejected, and the Licensing Act was passed, his arguments later found general adherence. In the Glorious Revolution of 1688, when Mary II and William III assumed the throne, they agreed to adhere formally to the newly adopted Bill of Rights. Censorship by royal fiat continued, but “unfettered licensing” became a new and generally accepted right that initiated England's tradition of a free — and freewheeling — media. Milton's Areopagitica, despite its complexity, became the touchstone for freedom of speech advocates. It has influenced the liberal tradition in Britain, the United States, and countries throughout the British Empire (see Resources).

A Primary Objective

Freedom of expression became a primary objective for Enlightenment thinkers as a measure of liberal progress. In Europe, Sweden was the first country to abolish censorship in 1766, followed quickly by Denmark and Norway in 1770. Reflecting the egalitarian spirit of the French Revolution, the National Assembly's Declaration of the Rights of Man in 1789 included not only the right to free expression but also the right to own a printing press (which previously required a license). In the American colonies, a principal complaint against the monarchy’s control was the King’s press censorship. After the American Revolution, the US Constitution's First Amendment, adopted in 1791, established one of the strongest standards for the guarantee of free speech by any constitution: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”

Expanding Standards of Free Expression: the US Supreme Court

Although the First Amendment as stated is rather absolute in its protection of free speech, the Bill of Right’s protection required judicial standards. In the US, these standards evolved through decisions of the Supreme Court to expand freedom and reduce restrictions on the media and other means of expression. For example, slander and national security were traditionally common justifications for restricting speech until relatively recently. While there were legitimate claims to limit speech to prevent outright defamation or political violence, such reasons were broadly interpreted to restrict speech in important ways.

The most famous case involving defamation laws was New York Times v. Sullivan (1964), in which the Supreme Court reversed a lower court ruling in favor of a Montgomery, Alabama city commissioner. He had sued The New York Times for liable over an advertisement made by civil rights leaders that he claimed had slandered him. It was a common tactic of public figures in the South against newspapers in the North to deter media coverage of the civil rights movement. In the Sullivan case, the Supreme Court ruled 9-0 to create a new legal standard to protect individuals and the media in both the dissemination of information and the expression of views on public policy. Its decision stated that it was not enough for a published assertion to be found wrong to be determined slanderous, since facts and views could remain in dispute. Proof of slander, especially against a public figure, would require one of three standards: intent of “actual malice,” prior knowledge of a claim's falsehood, or “reckless disregard” for the truth. 

Similarly, until the mid-1950s, the US Supreme Court had upheld public and national security laws restricting speech. In Schenck v. United States (1919), Oliver Wendell Holmes wrote a majority opinion broadly upholding the powers of the executive branch to maintain public order. Holmes famously asserted that “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” This frequently used example seems straightforward as a reason to restrict intentional acts of public disorder or violence. But Holmes’s opinion established an open-ended “clear and present danger” standard for restricting speech. In the case before Holmes, the plaintiff, Charles Schenck, was a Socialist convicted for distributing leaflets calling for World War I draftees to openly resist the draft. A case heard a year later, Abrams v. United States, convinced Holmes that the Court could easily abuse his standard. The majority upheld convictions against anarchists who distributed leaflets only expressing opposition against American involvement in World War I. In what became known as “The Great Dissent,” Holmes argued that his doctrine should be used in cases only when speech encouraged actions posing a “clear and present danger,” not to restrict expression of opinions or beliefs the state disagreed with. He wrote: “the ultimate good desired is better reached by free trade in ideas.”

It took nearly forty years for a Supreme Court majority to agree with Holmes’s Great Dissent. But in Yates v. United States (1957), the Court reversed numerous convictions based on the Smith Act, which outlawed revolutionary political groups calling for the overthrow of the government. In a 6-1 ruling, Justice John Harlan, relying on Holmes’s arguments, stated that the law had to distinguish between expressing the idea of overthrowing the government and acting to do so. The scope of that opinion was enlarged in a case, Brandenberg v. Ohio, that determined that the “clear and present danger” doctrine could not be used to criminalize the simple advocacy of lawlessness but that such advocacy had to reach the standard of “fighting words” or incitement likely to provoke “imminent lawless action.” The case was controversial because it vacated the conviction of a KKK grand master for speeches at a rally threatening violence against Jews and blacks. In another controversial decision in 1977, National Socialist Party of America v. Village of Skokie, a Court majority extended free speech protection to the use of Nazi uniforms, symbols, and salutes in a proposed march through a predominantly Jewish community in Skokie, Illinois in which one in six members was a survivor of the Holocaust.

In New York Times Company v. United States (1971), the Supreme Court also ruled that the government could not prohibit publishing government documents or information without a “heavy burden of proof” that national security or public order justified it. All of these rulings greatly expanded protections for the media and for citizens generally. They reinforced freedom of speech as an essential characteristic of the US but also influenced democracies generally in the basic understanding that restraints on freedom were a greater threat to a country's democratic foundations than the exercise of free speech.

The Totalitarian Principle: “Truth Is the Mortal Enemy”

The rise of totalitarian regimes in the 20th century had an opposite dynamic: they eradicated all freedom of speech. Such regimes immediately took complete control of the media and made it into an instrument for conveying state ideology. “Deviant” or dissenting views and opinions were severely punished. In the earliest days of the 1917 Russian Revolution, for example, the Bolsheviks imposed strict censorship rules, wrecked the presses of rival political groups, and went so far as to destroy private (“bourgeois”) libraries of opponents. Just as importantly, the Bolsheviks' leader, Vladimir Lenin advocated controlling society through propaganda and indoctrination. His successor, Stalin, institutionalized censorship by setting up state bodies to censor all publications and broadcasts as well as to control who could be a writer at all. In Germany, Hitler appointed Joseph Goebbels as director of propaganda almost immediately upon taking power to institute a regime of strict censorship in all areas of expression: printed and broadcast media, culture, and scholarship. One of Goebbels's first acts was to incite anti-Semitism in the media. He then rallied support for a massive book burning on May 10, 1933 in Berlin and other cities to destroy “non-German” books: 25,000 books were burned. (In the 19th century, German poet Heinrich Heine wrote prophetically, “Where books are burned, human beings are destined to be burned too.”)

Goebbels's professed the notion of the “Big Lie,” which defines the essence of totalitarian propaganda:

If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.

Free Thought vs. Totalitarianism

Independent or free thinking, of course, was punished severely in the Soviet Union, Nazi Germany, and similar regimes. All told, tens of millions of citizens who wrote or expressed views that contradicted state ideology or even common complaints about public officials found themselves in prison camps or graves. In the history of totalitarianism, however, one finds not just unimaginable suffering but also remarkable courage of individuals who struggled to write freely and reveal the truth for the world and for history. Examples include Albert Camus, editor of Combat during the French Resistance to Nazi Germany, the Cuban author Reinaldo Arenas who wrote of the cruel prison experiences he endured as a convicted homosexual, the Czech dissident Vaclav Havel who wrote of “the power of the powerless,” and Alexander Solzhenitsyn, the Russian author of The Gulag Archipelago, which documented the inhuman penal and forced labor camp system of the Soviet Union. For these individuals, and many, many others, intellectual freedom could not be compromised because it meant compromising truth itself. Some who were imprisoned found ways both to write and to smuggle their works out of their prison cells and their countries, creating a distinct new form of literature called prison writing. Their pursuit of truth and their efforts to overcome censorship — and dictatorship — were an inspiration for freedom movements.

A Universal Standard: Article 19

As noted in Essential Principles in this section and in Human Rights, the terrible destruction and mass murder carried out by Nazi Germany and other Axis powers during World War II caused the international community to create new institutions and instruments after the war to protect human rights and prevent a repeat of the war's atrocities. The most important institution was the adoption of the United Nations (UN) and the UN Charter. Its most important instrument is the Universal Declaration of Human Rights (UDHR) in 1948. Its Article 19 established the global standard for free expression: “Everyone has the right to freedom of opinion and expression.” The UDHR was adopted by the UN General Assembly 48-0. Subsequent UN documents, however, such as the International Covenants on Civil and Political Rights and on Social, Cultural, and Economic Rights (adopted in the 1960s), include exceptions allowing for the temporary restriction of several freedoms to preserve “public order.” Such exceptions were often used by authoritarian governments (and sometimes by democracies) to carry out general repression. As a result, the justification for suspending freedoms by the need to preserve public order was restricted in scope by the UN Commission on Human Rights in the time and circumstances such suspensions could be in force.

Freedom vs. Restriction: The Debates Continue

Even in democracies, controversies remain about restrictions on freedom of expression. France has laws against hate speech and the denial of the Holocaust and the genocide of Armenians. Their application against the leaders of the far-right National Front, however, appears to have had no effect on their rise in political polls (see France Country Study). In recent years in the US, issues of national security continued to pose difficult challenges. Government employees or contract workers released information to the public revealing classified information stirring new debates over what constitutes “whistle-blowing” (and thus should be protected from prosecution) and what constitutes illegal or even treasonous transgression of the law. In a recent case exemplifying such debate, Edward Snowden, a government employee under a CIA contract revealed classified information about the National Security Agency’s widespread collection of telephone and internet data as part of the war on terror. From exile in Russia, he also continued to release other information about NSA spying practices previously unknown to the public, including cases involving foreign governments. President Obama welcomed public debate on the programs after their unauthorized disclosure, but he directed the US government to charge Snowden with a variety of crimes under the Espionage Act and other laws and sought his extradition after he fled the country.

Not everyone agrees with the libertarian view of John Milton's Areopagitica or its embodiment in the First Amendment as defined by Oliver Wendell Holmes, especially given the increased threat of terrorism. Thus, democratic governments and societies continue to debate about the balance between national security and free expression as well as about other controversial issues such as obscenity, hate speech, political speech, intellectual property rights, and accountability of the media, among others.

Blasphemy Laws and the Meaning of the Cartoon Wars

Some clear challenges to free expression have emerged. Many authoritarian governments have ratcheted up repression of free speech (see, for example, in this section China Country Study). Another distinct challenge, however, is the adoption of blasphemy laws. As noted above, such laws were common in European countries until the Enlightenment (and even today in the Russian Federation members of the rock group Pussy Riot were imprisoned for blasphemous behavior in an Orthodox Church). Today, such laws are found in much of the Muslim world. Such laws restrict free expression much beyond showing respect for a religion generally to prosecuting any discussion or even offhand remarks that might be interpreted as expressing criticism of Islam, its beliefs, or its religious officials. In some countries, blasphemy can result results in death (like Iran and Saudi Arabia). In Turkey, the punishment is less severe but still chilling of free speech (one example: a world renowned pianist was given a suspended sentenced and fine for writing a jocular comment about Islamic clerics in a Twitter post). Overall, the effect of blasphemy laws has been to heighten intolerance of dissent. A study by Paul Marshall reports that such laws are “choking freedom of expression” (see Resources).

Such intolerance broadened to a global challenge of freedom of expression by extremist movements and repressive governments. A precedent was set in 1989 when Iran’s Supreme Leader Ayatollah Khomeini issued a fatwah (or religious edict) encouraging the assassination of Salman Rushdie, a British writer living in the US, for his novel Satanic Verses. Khomeini deemed it blasphemous for its treatment of the Koran and Islamic beliefs. Salman Rushdie had many death threats and went into hiding after the fatwah was issued. Book stores carrying his books were bombed; many stopped carrying them. After Khomeini’s death, the government of Iran retracted the fatwah in 1998 under international pressure (but not its general policies against free expression). Rushdie is no longer in hiding, but his movements are restricted. There remain ongoing threats on his life (see articles in Resources).

The fatwah was a precedent for extremist reactions to any expression in the world critical of Islam or offending the religious sensibility of Muslims. There were many incidents but the most far-reaching were “the cartoon wars.” In September 2006, Jyllands-Posten, a regional Danish newspaper, published cartoons mocking the Prophet Muhammad. Months later, Taliban extremists used their publication as a tenuous pretext to attack a Norwegian military base in Afghanistan (Denmark and Norway participated in the NATO mission in Afghanistan). Protests and attacks on Western embassies quickly spread to a dozen countries. Several Muslim political and religious leaders demanded that the Danish prime minister rebuke the publication of the cartoons and shut down the newspaper on the grounds that the Koran forbids any pictorial depiction of Allah or Allah’s Prophets. Free speech organizations and some governments defended the right to publish the cartoons and argued that restricting speech according to religious sensibility would strike at the heart of freedom of expression. But many leaders, including in the US and other Western countries with traditions of free speech, criticized Jyllands-Posten and called for an apology. In the end, after an international boycott by Arab countries cost the Danish economy several billion dollars, the Danish paper did issue an apology to defuse the international controversy. The prime minister, however, took no action against the paper and did not apologize on the newspaper’s behalf. He explained that in free societies, free speech was too important to be interfered with by the state. (See links on the “Cartoon Wars” in Resources.)

Free speech defenders praised the Danish prime minister’s fortitude but criticized the general response of Western leaders. Their reaction suggested that freedom of expression is a principle to be defended except when violent protests are organized against it. Such protests are often organized or provoked by extremist movements and governments, but they reflect a general political culture of intolerance. Freedom of expression encourages that slights to religious sensibilities or even violations of religious edicts be met instead by speech and persuasion, not violence, repression, or censorship. Organized religion-based intimidation is no different from government repression of journalists or, as in Mexico and Columbia, organized violence by criminal groups wanting to prevent publication of information about their activities. In each case, the aim is to intimidate people into silence.

In January 2015, Islamic State extremists carried out a terrorist attack on the French satirical weekly Charlie Hebdo in Paris that killed 11 people and injured 11 others. There were related attacks on a kosher market and other targets but the attack on Charlie Hebdo was connected directly to its recent publication of satirical images of the Prophet Muhammed. In reaction, several million people gathered in a demonstration in Paris, including the leaders of most European nations, to condemn the terrorist attacks and to defend free media. “I Am Charlie Hebdo” was a slogan adopted worldwide on social media and other platforms. Ten years after “the cartoon wars,” the challenge to freedom of expression by these newest attackers was abundantly clear. On the one hand, the people and their leaders declared that they would not be intimidated by violence; on the other hand, many publications have chosen self-censorship rather than risk the type of intimidation visited on Jyllands-Posten or the violence committed against Charlie Hebdo.

Freedom of Expression: The Balance Sheet

According to the annual report by Freedom House “Freedom of the Press,” there continues to be a steady increase over the last decade in restrictions on free media and free expression. While it notes troublesome cases of increasing restrictions in some “free” countries, the main threats to freedom of expression remain the broader restrictions imposed by repressive governments and ideologies in “partly free” and “not free” countries, as well as the threat and use of violence directed against freedom of speech in general.

In the 2015 Freedom House report, aixty-three countries were categorized as having a fully free media in 2014. These are countries “where coverage of political news is robust, the safety of journalists is guaranteed, state intrusion in media affairs is minimal, and the press is not subject to onerous legal or economic pressures.” The large majority of countries in the 2015 survey, however, were either “partly free” (71) or “not free” (66). By world population, only 14 percent, or one in six persons, live in countries with “free media,” while 42 percent live in “partly free” and 44 percent in “not free” countries.

Freedom House uses a comprehensive methodology for examining the legal, political, and economic environment in each country. It uses a similar scoring system as its Freedom in the World Survey: ranging from 1 (freest) to 7 (least free). In general governments in “partly free” countries (ranging from 3 to 5) impose administrative and ownership limits on media, tend to harass independent media critical of the government or its policies, fail to protect journalists or media outlets from attack and harassment by others, or often repress and restrict speech in substantive ways. In “Not free” countries, governments impose complete censorship, control the content of and access to the media and the internet, have fully restrictive registration requirements for media and journalists preventing most independent outlets and ensuring that the population gets its information from state media, and generally imprison or physically attack individuals who express themselves freely in any way. Often state-owned media are used for propaganda, ideological indoctrination, and state-controlled social mobilization. Eight countries are categorized as the “worst of the worst” (Belarus, Cuba, Equatorial Guinea, Eritrea, Iran, North Korea, Turkmenistan, and Uzbekistan). These countries have no independent media, and state media perpetuate misinformation and “cults of personalities."