Freedom of Speech Resources

EXPLORE THE HISTORY, LAW, AND THEORY OF FREE SPEECH

History

Socrates 470/469 – 399 BC
Plato 428/427 or 424/423 – 348/347 BC
Xenophon 430–354 B

Socratic Political Philosophy

The proper place of speech, or reason, in the political community became for the first time a pressing theoretical question and political issue with the life and death of Socrates. Socrates departed from the tradition of philosophy that preceded him by, among other things, his decision to investigate moral and political questions by questioning publicly and privately the opinions of his unphilosophic contemporaries. His public questioning of received opinion about virtue and citizenship led to his prosecution by his home city of Athens on charges of impiety and ultimately to his execution. The defense he gave in the face of these charges, memorialized in the writings of his students Plato and Xenophon, may not have saved his life, but it helped to secure the privileged place of science or philosophy in the ancient regime and thereafter in the Western world.

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Aristotle 384-322 BC
Born in Stagira, Ancient Macedonia

Aristotle’s Political Science

Though Plato was the first to elaborate a Socratic philosophy of politics, his student Aristotle was the first to articulate a practically-oriented political science, meant to be of use to legislators, statesmen, and citizens. Like his teachers, Aristotle did much to promote philosophy as an ally to the city and a guide for political action, and thereby not only encouraged toleration of philosophy but established it as a crucial basis of authority throughout the Western world. Yet despite the importance of reason or speech in Aristotle's political teaching, he did not advance any theory or argument for freedom of speech. Moreover, his argument that the city has supreme authority over all things suggests that there is no natural limit to political authority that might carve out any specific "rights," such as the right to free speech.

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Circa 4 BC - 30 AD

Execution of Jesus of Nazareth

Jesus of Nazareth, known as Jesus Christ to his Christian followers, was the spiritual founder of Christianity. Jesus was famously crucified in Jerusalem by the Roman authorities under the encouragement of the Jewish leadership because his teachings were heretical to the latter and politically dangerous to the former. John Stuart Mill, the famous 19th-century defender of freedom of speech, would later hold up Jesus, along with Socrates, as an example of a world-transforming eccentric who illustrates the need to make room in society for those with radically unconventional views.

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Circa 1440 AD
Johannes Gutenberg 1400-1468

Invention of the Printing Press

The transition from handwritten manuscripts to printed books marks a crucial turning point in the history of speech, or reason, and politics. The ease and affordability of reproducing written work with the mechanical printing press that Johannes Gutenberg invented, or at least perfected, in the fifteenth century Holy Roman Empire, dramatically expanded the audience that an author could reach. Book reading was no longer the exclusive province of the privileged few who were rich enough to afford to buy hand-copied scrolls and codices, which were difficult to produce and therefore scarce and expensive. The result was the rapid proliferation of reading among previous excluded classes, and an enormous increase in the influence of single talented authors over society. It was not long before the two predominant authorities in the western world, the church and the state, responded to this new rival influence with measures to regulate and control presses.

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Published November 23, 1644
John Milton, 1608-1674

John Milton, Areopagitica

Subtitled A Speech of Mr. John Milton for the Liberty of Unlicenc’d Printing, to the Parliament of England, John Milton’s Areopagitica stands as the first explicit defense of freedom of speech or press. Milton wrote this speech in response to the Licensing Act of 1643 and advocates for what would eventually become the common law principle of freedom from “prior restraint.” In other words, the state should retain the right to regulate “scandalous” writings, but this regulation should not be permitted prior to publication. Though Milton's arguments point toward a stronger case for toleration of heterodoxy, he stops short of making such a case and admits relatively extreme qualifications to his understanding of the freedom of the press. In particular, Milton insists that toleration should not extend so far as to include Catholics.

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John Locke 1632-1704
Letter Concerning Toleration, 1689
Two Treatises on Government, 1689

John Locke: Toleration and Limited Government

John Locke was an English political philosopher in the 17th century who is considered to be one of the most influential of the Enlightenment philosophers on the American founding and therefore on the character and design of the U.S. Constitution. His political teaching is relevant to the freedom of speech and press in two ways. First, he articulated a powerful argument for freedom of conscience in his Letter Concerning Toleration, which, although it is intended primarily as an argument for religious toleration, can be understood to support the toleration of heterodox opinion more generally. Second, he developed a general theory of limited government based on property rights that was taken by many of his students to imply the right to free speech.

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Benjamin Franklin, 1706-1790
Letter to the Editor on Freedom of Speech, 1722
"Apology for Printers," 1731

Benjamin Franklin

Benjamin Franklin was a printer, scientist, inventor, civil servant, and one of the Founding Fathers of the United States. Though Franklin did not take part in the drafting and debate over the Bill of Rights, he was defending the freedom of speech and the press more than half a century before America fought for its independence. As a teenager, Franklin submitted a letter to his brother's newspaper under the pseudonym "Silence Dogood" vigorously denouncing governments that restrict speech. Later, when he ran a press of his own, he issued a somewhat more subdued "Apology for Printers" in his newspaper, the Pennsylvania Gazette, responding to complaints about certain advertisements he was willing to publish.

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Colony of New York, 1735
John Peter Zenger, 1697-1746

Trial of John Peter Zenger

The trial and acquittal of New Yorker John Peter Zenger in 1735 on charges of seditious libel under the British colonial government became a symbol of the American commitment to the freedom of the press. It also informed many Americans' understanding of that freedom when it was established in the bill of rights. Zenger was arrested in 1733 for publishing The New York Weekly Journal, a newspaper that was consistently critical of the colonial governor of New York, William Cosby. Zenger's counsel argued, contrary to the common law standard of seditious libel, that the truth of his newspaper's claims should be considered as grounds for his defense. Despite the colonial judge's firm instructions to the jury that their duty was to decide only whether he had in fact published the essays in question, the jury acquitted Zenger in a bold act of "jury nullification."

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1776-1784

Declarations of Independence and Rights

When the tension between the colonists and the British crown came to a head with a violent confrontation between British soldiers and the Massachusetts militia in April of 1775, American leaders from the thirteen colonies convened a Continental Congress to organize an army to fight for their independence. In July of the following year, this Congress issued a declaration of the colonies' independence from Great Britain. This declaration justified the colonies' rebellion by stating "self-evident" "truths" about the purpose and foundation of government and by explaining how the British government had consistently failed to meet the standards of those truths. This articulation of a classical liberal conception of government, based on equality and natural rights, would serve as the moral foundation of the United States' Constitution. This declaration, however, was not the only public defense of the states' break with the crown; nor was it the only public statement of their political principles. Individual states issued their own declarations of rights and of independence, both as stand-alone resolutions and as parts of new state constitutions.

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Published 1765-1769
William Blackstone 1723-1780

William Blackstone: Commentaries on the Laws of England

Blackstone's Commentaries on the Laws of England was a hugely influential treatise on English law that methodically rendered that massive body of statutes and legal decisions called the "common law" into a coherent system of legal principles intelligible to the lay-person. The Commentaries was the paramount authority on the common-law in the eyes of the American Founders. Its articulation of the logic of the common law was one of the reasons that they chose to establish the American legal system on its basis. Blackstone is still cited today by lawyers and judges in their efforts to articulate the meaning of American laws and the Constitution. The common-law view of freedom of the press found in the Commentaries is more or less what that freedom was understood to mean when it was included in the American Bill of Rights. Blackstone understood the freedom of the press to mean little more than protection against "previous restraint" (now usually called "prior restraint"). In other words, the state could not prevent anyone from publishing anything, but could legitimately punish the publication of nearly anything it perceived dangerous.

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Drafted 1777
Enacted 1786

Thomas Jefferson: Virginia Statute for Religious Freedom

The Virginia Statute for Religious Freedom was an early state law drafted by Thomas Jefferson that disestablished the Church of England and instituted religious freedom in Virginia. Much of the Statute reflects on the reasons for the measures it proposes and therefore offers a defense of religious freedom and toleration. The Statute's reasoning in many places follows that of Locke's Letter Concerning Toleration and Milton's Areopagitica, and, like Locke's Letter, it traces freedom of religion ultimately to the freedom of the mind. The statute thus points generally in the direction of freedom of speech, insofar "all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion."

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May 25 - September 17, 1787
Philadelphia, Pennsylvania

The Constitutional Convention

In response to the widely recognized failure of the original American constitution, the Articles of Confederation, a convention of delegates from every state besides Rhode Island was organized in Philadelphia to propose revisions to the Articles. Rather than simply amend the Articles, however, the delegates decided early on to begin from scratch and to propose an entirely new Constitution. Over roughly fifteen weeks, the delegates deliberated about every aspect of the design of the new constitution. The most controversial of their decisions, which was also the greatest obstacle to the ratification of the Constitution, was to omit a bill of rights in the original plan. Thus the original constitution lacked any explicit reference to freedom of speech or of the press. It was not until after the Constitution was ratified that the Bill of Rights was introduced as its first ten amendments. James Madison's copious notes on the Convention offer a record of its decision to leave out a bill of rights, but says very little about the reasoning behind it. One must look to other writings by the delegates, such as the Federalist, in order to find reasons for the omission.

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Alexander Hamilton, James Madison, and John Jay
Published 1787-1788

The Federalist

The Federalist is the title given to a series of essays by Alexander Hamilton, James Madison, and John Jay defending the Constitution to New Yorkers in an effort to promote its ratification. The Federalist stands as the most comprehensive and systematic articulation by the Founders of the reasoning behind the design of the United States Constitution. The second to last essay in the Federalist (No. 84) offers a defense of the Constitutional Convention's unpopular decision to omit a bill of rights, and therefore not to recognize explicitly the freedom of speech or press.

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Approved by Congress, September 28, 1789
Ratified December 15, 1791

Passage of the Bill of Rights

Only a month after the Constitution was printed and distributed, the first ratifying convention took place in Pennsylvania. The ratification process went relatively smoothly for a couple months after that, with five state conventions approving ratification with little difficulty. In January of 1788, however, the ratifying convention in Massachusetts devolved into a bitter and even violent deadlock, largely over the question of a bill of rights. Only by promising to introduce a Bill of Rights as amendments were the Federalist supporters of the Constitution able to break the deadlock and secure ratification in Massachusetts. Without this strategy, which was subsequently adopted in other states with Federalist minorities, the Constitution could not have been ratified. Despite the reservations of many of the Federalists, who had a commanding majority in the first Congress, James Madison recognized the necessity of keeping their promise and adding a Bill of Rights quickly in order to secure the legitimacy of the new government. He submitted a proposal for seventeen amendments based on the Virginia Declaration of rights early in 1789. This proposal went through four stages of rigorous debate and revision in the House and the Senate before being approved by Congress in September of 1789. Of the twelve articles in the approved amendments, ten were ratified as by the states over the course of the next two years, becoming what is now known as our Bill of Rights. The first of these ten included the provision that "Congress shall make no law ... abridging the freedom of speech, or of the press."

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Naturalization Act: June 18, 1798
Alien Friends Act: June 25, 1798
Alien Enemy Act: July 6, 1798
Sedition Act: July 14, 1798

The Alien and Sedition Acts

In response to growing opposition to John Adams’s Federalist administration—particularly over its war with France—the Federalists who controlled congress passed a series of highly controversial laws designed to guard against foreign influence in American politics and domestic treason. One of these, the Sedition Act, authorized the federal government to punish “any persons” who “unlawfully combine or conspire” against the federal government and its laws or who “write, print, utter or publish … scandalous and malicious writing or writings against the government of the United States” intending to damage its reputation or incite resistance to its laws. The Sedition Act was thus an early test of the meaning of the freedom of speech and press provisions of the First Amendment.

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Kentucky Resolutions, November 16, 1798
Virginia Resolutions, December 24, 1798

Virginia and Kentucky Resolutions

In response to the Alien and Sedition Acts of 1798, the state legislatures of Kentucky and Virginia each adopted a series of resolutions, drafted by Thomas Jefferson and James Madison respectively, declaring those acts to be unconstitutional. Both the Kentucky and Virginia Resolutions appealed to the First Amendment of the Constitution to argue that the federal government had no right to abridge the freedom of speech or of the press. While this argument is often taken as expressing a more libertarian conception of freedom of speech than the common-law view articulated by Blackstone, the argument of the resolutions concerned more narrowly the question of whether the federal government had the power to regulate speech and press. Neither Madison nor Jefferson ever denied that individual state governments had such a power. The Kentucky and Virginia Resolutions were thus more about federalism than about freedom of expression as such. Nevertheless, these Resolutions, as well as Madison's defense and restatement of them a year later in his "Virginia Report," give the clearest expression of Madison's and Jefferson's understanding of the foundational importance of freedom of speech and its role in the Constitution.

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3 Johns. Cas. 337 (N.Y. 1804)
Alexander Hamilton, defense counsel

People v. Croswell (1804)

Despite their complaints over the Federalists' use of the Alien and Sedition Acts to prosecute the opposition, Republicans did not hesitate to prosecute Federalist opposition for libel at the state level once they won the presidency with the election of Thomas Jefferson in 1800. Croswell published a small paper called The Wasp, which aggressively criticized Thomas Jefferson and other Republican public officials. When he was a arrested and convicted on charges of libel and sedition by the State of New York, Croswell appealed to the Supreme Court of New York, where he was defended by Alexander Hamilton and James Kent. Though the judges were evenly split and the conviction stood, the case gave a high-profile occasional for Hamilton and Kent to make a case for permitting truth as a defense against libel charges.

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Free Speech and Slavery

As the country grew more divided over the question of slavery in the early 19th century and as the threat of secession by the slave states in the south loomed larger over the political landscape, efforts were made in both the south and the north to suppress the slavery issue. Many southern states radically regulated the press, preventing dissemination of anti-slavery literature. Since at this time the Bill of Rights was understood to apply only to the federal government, there was no constitutional question about such measures. However, much of the anti-slavery literature in slave states was being introduced by northern abolitionists through the federal postal system. In response, southern states mandated that their post-masters refrain from delivering anti-slavery materials. Many northern states tolerated these measures either out of support for slavery or out of fear of secession. Congress eventually supported the effort to quarantine the South from anti-slavery agitation with the Post Office Act of 1836, which permitted post-masters to respect local censorship laws. Though this was a federal law and therefore was subject to the First Amendment, it was never brought to the Supreme Court.

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Published 1859
John Stuart Mill, 1806-1873

John Stuart Mill: On Liberty

John Stuart Mill was an English philosopher best known for his book On Liberty, which advanced a libertarian teaching about freedom. A large part of On Liberty is devoted to freedom of speech in particular, and this part has shaped to a great extent contemporary views of the First Amendment. Its argument goes beyond the classical liberal case for freedom of speech, which is based primarily on a view of the radically limited jurisdiction of government, and puts forward a positive case for individuals to respect the expression of opinions they find offensive. Mill is thus largely responsible for the more expansive view of the duty to respect freedom of speech, which resists suppression of speech not only by government, but also by society and within private institutions. On Liberty also advances what has become known as the "harm principle," according to which the only justification for curtailing anyone's liberty is that it prevents harm to others.

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Espionage Act of 1917
Sedition Act of 1918

The Espionage and Sedition Acts

The Espionage Act of 1917 was a law passed by Congress after the United States entered World War I designed to protect the war effort from disloyal European immigrants. The Act criminalized the publication or distribution of "information" that could harm or hinder US armed forces as well as of "false reports or false statements" intended to promote America's enemies, and it empowered the Postmaster General to seize mail that it judged to fall within these categories. The Sedition Act of 1918 refers to a series of amendments to the Espionage Act that expanded the crimes defined in that law to include, among other things, any expression of disloyalty to or contempt of the US government or military.

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249 US 47 (1919)
Holmes Court

Schenck v. United States (1919)

Schenck v. United States was an important early test of the constitutionality of the Espionage Act of 1917. In a unanimous decision, the Supreme Court upheld the conviction under the Espionage Act of two leaders of Philadelphia's Socialist Party, who had distributed fliers urging their readers to resist the draft. Though the Court upheld the law, its opinion, delivered by Oliver Wendell Holmes, articulated a standard that would eventually serve to limit libel laws. Holmes offered what became known as the "clear and present danger" test, which classified unprotected speech narrowly to cases where it led immediately and unambiguously to criminal action.

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268 US 652 (1925)
Taft Court

Gitlow v. New York (1925)

Prior to the Fourteenth Amendment, the Bill of Rights applied only to the federal government, and did not restrict state legislatures. In Gitlow, the Supreme Court decided that the Fourteenth Amendment extended the freedom of speech and press provisions in the Bill of Rights to apply to the individual states. During the first Red Scare in the wake of World War I, Benjamin Gitlow was charged under New York's "Anarchy Law of 1902" for publishing a "Left Wing Manifesto" in a socialist newspaper. The court upheld Gitlow's conviction, with vigorous dissents from Justice Brandeis and Justice Holmes, but in doing so ruled that the case fell under federal authority.

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Alien Registration Act of 1940
54 Stat. 670; 18 U.S.C. § 2385

The Smith Act

The Alien Registration Act of 1940, commonly known as the "Smith Act" after Representative Howard Smith, its principal author, criminalized a broad range of activities subversive of the U.S. government. The Smith Act was enacted in response to growing fears of fascist and communist sedition, and originally targeted disruptive immigrant leaders of the growing labor movement. However, it would go on to serve in the Second World War as a version of the First World War's Espionage and Sedition Acts, suppressing anti-war agitation and foreign subversion of American war efforts. Later, during the Cold War and "McCarthyism," the Smith Act would be used to prosecute dozens of American communists for suspected subversion. It was in response to this string of convictions that the Supreme Court would finally begin to rule against the government in sedition cases, starting with Yates v. United States. Parts of the Smith Act remain in the U.S. criminal code.

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Freedom of Speech on Campus

Since the late 1980s, colleges and universities around America have come under attack for what has frequently been termed "political correctness." Administrators, students, and even faculty are accused of imposing restrictions on speech in their schools by both formal and informal means for the sake of advancing liberal political goals. Such restrictions originally took the form of "speech codes," which were typically part of harassment policies in schools' codes of conduct that instituted penalties for vaguely defined forms of expression that were disparaging of certain identity groups. More recently, schools have been criticized for disinviting speakers under pressure from political student groups and for permitting students to disrupt events with invited speakers. Attention has also been brought to a recent trend in the use of "trigger warnings," which are meant to warn students that they will hear something that might traumatize them, and "safe spaces," which are zones in which students are guaranteed to be safe from offense. In public universities, these practices have raised constitutional questions, and speech codes, at least, have been consistently struck down by courts. In private schools these practices nevertheless raise questions about the role of freedom of speech in higher education.

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Aristotle 384-322 BC
Born in Stagira, Ancient Macedonia

Aristotle's Political Science

Though Plato was the first to elaborate a Socratic philosophy of politics, his student Aristotle was the first to articulate a practically-oriented political science, meant to be of use to legislators, statesmen, and citizens. Like his teachers, Aristotle did much to promote philosophy as an ally to the city and a guide for political action, and thereby not only encouraged toleration of philosophy but established it as a crucial basis of authority throughout the Western world. Yet despite the importance of reason or speech in Aristotle's political teaching, he did not advance any theory or argument for freedom of speech. Moreover, his argument that the city has supreme authority over all things suggests that there is no natural limit to political authority that might carve out any specific "rights," such as the right to free speech.

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September 11, 2012

Benghazi and “The Innocence of Muslims”

An attack on the U.S. embassy in Libya that was initially attributed to outrage over an American-made video criticizing Islam raised questions about the relationship between the American commitment to freedom of speech and its international diplomacy, as well as about the obligations of private American companies to freedom of speech abroad. In early September, 2012, an American citizen uploaded a privately funded short film called "The Innocence of Muslims" to youtube with Arabic subtitles. On September 11, shortly after its publication, protests erupted in response in Egypt and quickly spread to a number of other Muslim countries. During these protests a group of militant Libyans attacked the American embassy in Benghazi, killing five Americans including the ambassador. Two days later, Secretary of State Hillary Clinton blamed the video and publicly condemned it, but also insisted that it was no justification for the violence. President Obama subsequently asked google to take it off of Youtube, but Google determined it did not violate Google's terms of service and left it up. In a speech before the United Nations General Assembly, Obama echoed Clinton's condemnation of the video and tried to explain to the international community the reasons why he did not force Google to remove it from Youtube. An investigation concluded later that the attack was not a spontaneous act connected with the protests over the "Innocence of Muslims" video, but was a previously-orchestrated terror attack. The initial sequence of events nevertheless have continued to spur debates over how America should present its First Amendment commitments to a world that does not wholly share these commitments. Although Youtube did not remove the video, it voluntarily blocked access to it in Libya and Egypt where the protests were most intense. The governments of several other Muslim countries banned Youtube when it did not take the video down.

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Chelsea Manning Army Leak, 2009-10
Edward Snowden NSA Leak, June 2013

Government Leaks

In the past decade, several controversial cases have emerged involving government leaks. Late in 2009, Chelsea Manning (at that time called by his birth name, Brad), a U.S. Army Intelligence Analyst in Iraq began transferring to WikiLeaks what would eventually amount to 750,000 government documents. In 2013, Edward Snowden, an American IT professional, gave journalists thousands of classified documents that he had taken from the NSA while doing contract work for them. Manning and Snowden were both charged under the Espionage Act of 1917, among other charges. While Manning served part of a prison sentence for her leak, Snowden fled America before disclosing his stolen documents and has since then received asylum in Russia. Snowden's and Manning's efforts to bring government secrets to light have been alternately lauded and condemned, revealing deep differences in our perception of the legitimacy of government secrecy and the rights and duties of government agents. More recently, the Trump administration has been plagued by leaks and has increased its efforts to investigate and prosecute them.

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Murder of Theo Van Gogh, November 2, 2004
Charlie Hebdo Attack, January 7, 2015
Curtis Culwell Center Attack, May 3, 2015

Islamic Extremism and Freedom of Speech

The principle of freedom of speech has come into intense and sometimes violent conflict with radical Islam in parts of the world, which considers blasphemy against its religion and its prophet Mohammed a punishable offense. While this can have profound implications for international relations and national security, it also poses a danger for individuals who offend Islam. When Salmon Rushdie published his novel The Satanic Verses in 1988, the Supreme Leader of Iran Ayatollah Khomeini issued a "fatwa," an Islamic legal opinion, calling for Rushdie's death for blasphemy. Rushdie was forced to live in hiding and under police protection for years afterwards, and several other people involved in the book's publication were shot and stabbed. In 2004, filmmaker Theo Van Gogh was shot to death for his short film Submission about the mistreatment of women in certain Islamic societies. In 2011, Charlie Hebdo, a satirical French magazine that had published controversial cartoons depicting Mohammed, was firebombed after it published an issue with Mohammed on the cover. In 2015, two Islamist gunmen forced their way into the magazines's headquarters, killed twelve of their staff, and wounded eleven. Four months later, gunmen attacked the Curtis Culwell Center in Garland, Texas, when it exhibited art depicting Mohammed and hosted a contest for Mohammed cartoons.

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September 11, 2012

Benghazi and "The Innocence of Muslims"

An attack on the U.S. embassy in Libya that was initially attributed to outrage over an American-made video criticizing Islam raised questions about the relationship between the American commitment to freedom of speech and its international diplomacy, as well as about the obligations of private American companies to freedom of speech abroad. In early September, 2012, an American citizen uploaded a privately funded short film called "The Innocence of Muslims" to youtube with Arabic subtitles. On September 11, shortly after its publication, protests erupted in response in Egypt and quickly spread to a number of other Muslim countries. During these protests a group of militant Libyans attacked the American embassy in Benghazi, killing five Americans including the ambassador. Two days later, Secretary of State Hillary Clinton blamed the video and publicly condemned it, but also insisted that it was no justification for the violence. President Obama subsequently asked google to take it off of Youtube, but Google determined it did not violate Google's terms of service and left it up. In a speech before the United Nations General Assembly, Obama echoed Clinton's condemnation of the video and tried to explain to the international community the reasons why he did not force Google to remove it from Youtube. An investigation concluded later that the attack was not a spontaneous act connected with the protests over the "Innocence of Muslims" video, but was a previously-orchestrated terror attack. The initial sequence of events nevertheless have continued to spur debates over how America should present its First Amendment commitments to a world that does not wholly share these commitments. Although Youtube did not remove the video, it voluntarily blocked access to it in Libya and Egypt where the protests were most intense. The governments of several other Muslim countries banned Youtube when it did not take the video down.

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