Freedom of Speech Resources

EXPLORE THE HISTORY, LAW, AND THEORY OF FREE SPEECH

Theory

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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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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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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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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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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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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Harper Brothers Publishers, 1948
Alexander Meiklejohn, 1872-1964

Alexander Meiklejohn: Free Speech and its Relation to Self-Government

Alexander Meiklejohn was the first political theorist to offer a sustained defense of freedom of speech on the basis of democratic theory. The function of liberty of speech and of the press, in his view, is to enable the most inclusive and therefore best public deliberation. It thus refuses to identify the right to speak freely with property rights, which as Meiklejohn observes can have relatively severe restrictions within the overarching limitation of due process. Meiklejohn thus elevates freedom of speech above almost all other rights as the foundation or most essential condition of the democratic process. While Meiklejohn is more strictly libertarian than other democratic theorists when it comes to public speech, however, he distinguishes such speech from private speech and mere "expression," which he believe ought to be covered by due process limitations alone.

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The Free Press, 1993
Cass Sunstein, born 1954

Cass Sunstein: Democracy and the Problem of Free Speech

In this influential book, legal scholar Cass Sunstein defends a view of freedom of expression based on the principle of "government by discussion." Like Meiklejohn, Sunstein sees the purpose of the freedom of speech and press clauses of the First Amendment not as protecting individual liberty, but as making possible deliberative democracy. Unlike Meiklejohn, however, Sunstein's view of the requirements of democracy calls for a radical redrawing of the boundaries between protected and unprotected speech. Where Meiklejohn advocated a more libertarian view of First Amendment protections, Sunstein thought that there should be more regulation of speech in order to correct the distortions of the public voice that certain kinds of speech can produce.

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Harvard University Press, 1993
Catharine MacKinnon, born 1946

Catherine MacKinnon: Only Words

Catharine MacKinnon is an influential feminist legal scholar and activist, whose work has focused largely on sexual harassment and pornography. MacKinnon's famous book on pornography and freedom of speech, Only Words, argues that the First Amendment has been unreasonably applied to justify the pornography industry's violation of the Fourteenth Amendment's equal protection guarantee. MacKinnon argues that the subordination of women depicted in pornography contributes to and is even inseparable from the fact of women's subordination in society as a whole. Thus, like Waldron and Sunstein, MacKinnon extends the harm principle to include much broader and subtler forms of social harm than those recognized by classical liberalism.

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Oxford University Press, 1994
Stanley Fish, born 1938

Stanley Fish: There’s No Such Thing as Free Speech (…and it’s a good thing too)

Stanley Fish's controversial book, There's No Such Thing as Free Speech (...and it's a good thing too), offers a powerful critique of the very idea of freedom of speech. He rejects, in the first place, the premise that speech is distinguishable from action or conduct, and argues that the practical concerns bound up with speech always bring with them some kind of constraint on speech. In other words, no one would really be willing to tolerate all forms of speech. He concludes that all arguments about freedom of speech are arguments that seek to replace one broadly accepted system of constraints on speech with another.

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Harvard University Press, 2012
Jeremy Waldron, born 1953

Jeremy Waldron: The Harm in Hate Speech

In his controversial and influential book, The Harm in Hate Speech, Jeremy Waldron questions the United States' stubborn refusal to regulate offensive speech. Waldron's argument suggests that there is a serious difficulty in the "harm principle" -- John Stuart Mill's distinction between actual harm and mere speech or opinion -- by focusing on the less tangible, but no less significant, harm that offensive speech can produce. In particular, Waldron emphasizes the damage that hate speech can do to democratic society by undermining citizens' sense of dignity and assurance of security under law.

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