The importance and influence of a free press have been recognized for centuries. Thomas Carlyle mistakenly attributed the phrase “Fourth Estate” to Edmund Burke, who (Carlyle claimed) once said that “there were three Estates . . . but in the Reporters Gallery yonder, there sat a fourth Estate more important far than they all.” The presence of that Fourth Estate—which daily engages in acts of questioning and retelling—ideally keeps the people informed and thereby allows them to exercise their sovereignty. On New Year’s Day 2018, A. G. Sulzberger, the then-new publisher of The New York Times, offered a familiar boast, writing that “There was a reason freedom of speech and freedom of the press were placed first among our essential rights. Our founders understood that the free exchange of ideas and the ability to hold power to account were prerequisites for a successful democracy.”
America’s commitment to these freedoms is not codified in one document. True, aspects of these freedoms are enshrined in the First Amendment to the United States Constitution, as interpreted in numerous federal and state court decisions. These freedoms, however, are just as much a matter for America’s “unwritten” constitution—that is, the canonical works of political and social thinkers who have influenced civic education and political practice, from Thomas Jefferson’s Notes on the State of Virginia, to Henry David Thoreau’s Civil Disobedience, to Martin Luther King, Jr.’s Letter from a Birmingham Jail.
While an unfettered press is currently receiving a robust defense in some circles, the related concept of free speech has been under attack. In recent years, the media has reported with distressing frequency on the silencing of speakers on college campuses, mostly by groups of students who choose to shout down the speakers with whom they adamantly disagree. Fervent debates about who should be invited to speak—whether by students, faculty, or administrators—have coincided with calls for restrictions on “offensive” speech. A recent report on campus views on free speech by John Villasenor of the Brookings Institution suggested, among other things, a limited understanding of the actual and perceived limitations imposed on speech under the First Amendment, a belief that hate speech is not protected speech, and even a willingness by some students to use violence to disrupt what they deem to be offensive speech. Coupled with frequent discussions of “safe spaces” on campus and “trigger warnings,” it is not surprising to find writers (on both the right and the left) expressing concern over the state of free speech in the United States. Generations that were raised to believe in the sanctity of the constellation of freedoms that constitute free expression regularly find themselves asking the perennial question “What’s the matter with kids today?”
Part of the problem is that free speech is difficult. Even as speech advances knowledge and encourages debate, speech has the potential to insult, undermine morals, and subvert political authority. The written word, the passionate oration, and the screams of an angry mob all constitute forms of expression—even if some forms are more convincing than others. Free speech has never been a static concept. Its boundaries are constantly being redrawn in light of changing politics and mores. Only by wrestling with the benefits and potential risks of expression can a society honestly engage in the act of self-governance. At moments like this, when attacks on free speech seem more regular and more troubling, revisiting key defenses of free expression provides a useful way to begin that engagement. And any such effort should begin with John Milton and John Stuart Mill.
While an unfettered press is currently receiving a robust defense in some circles, the related concept of free speech has been under attack.
In 1644, Milton wrote his polemic Areopagitica in response to a law that subjected writers to strict licensing requirements. Milton’s pamphlet offered a full-throated, lyrical, but incomplete critique of censorship and defense of free expression. Reading Areopagitica today provides an opportunity to reflect not merely on the purpose of free expression, but on the factors that may restrict its implementation. The censorship which Milton attacks was originally enforced on behalf of the sovereign by the Court of Star Chamber. Following the abolition of the Star Chamber in 1641, Parliament assumed control of the press and passed its “Ordinance for the Regulating of Printing” in 1643. The licensing order required, among other things, the granting of a license for all publications by the Stationers’ Company of London and a twenty-person Committee on Examination; the search and seizure of publications deemed offensive to the government; and the arrest and imprisonment of writers, printers, or publishers who violated the order. Milton’s own involvement stemmed from a debate over religious toleration. When Parliament convened an assembly to advise it on religious reform in 1644, a Presbyterian majority sought to enforce the censorship law against a Congregationalist and independent minority of the assembly which had published a defense of religious toleration. Milton, who had previously published controversial writings in support of divorce without a license as well as writings on religious toleration, was also targeted.
Areopagitica is modeled on a speech by the fourth-century Athenian orator Isocrates. In his Areopagiticus, Isocrates nostalgically praised the Areopagus, an elite court during Athens’s golden age which he believed to embody the wisdom and prudence of Athenian democracy. Ironically, Milton models himself on Isocrates while arguing against elite control over publication in seventeenth-century England. In doing so, he does not seek to undermine Parliament; he agrees to praise Parliament as appropriate, but explains that “he who freely magnifies what hath been nobly done, and fears not to declare as freely what might be done better, gives ye the best covenant of his fidelity.” Such man’s “highest praising is not flattery and his plainest advice is a kind of praising.” Indeed, “when complaints are freely heard, deeply considered, and speedily reformed, then is the utmost bound of civil liberty attained that wise men look for.”
The 1643 ordinance, Milton explains, will do nothing to suppress “scandalous, seditious and libelous books.” Its purpose “will be primely to the discouragement of all learning, and the stop of truth, not only by disexercising and blunting our abilities in what we know already, but by hindering and cropping the discovery that might be yet further made, both in religious and civil wisdom.” (He unfairly identifies such censorship as a Catholic innovation, calling the licensing order “apishly Romanizing.”)
Books, like men, deserve a chance to prove themselves. In censoring a book before it has a chance to be published, Parliament risks destroying a potentially great or important idea (or martyring a bad one). Books cannot make a bad soul good or a good soul bad. When a good man is exposed to bad ideas, however, that exposure has the potential to strengthen, rather than weaken his virtue. “I cannot praise a fugitive and cloistered virtue,” Milton writes, “unexercised and unbreathed, that never sallies out and sees her adversary, but slinks out of the race, where that immortal garland is to be run for, not without dust or heat.” Books should be “promiscuously read” to better know vice and enhance virtue. Milton suggests that God wants people to read, rather than to be “captivate[d] under a perpetual childhood of prescription.” Exposure to difficult, if not wrong, ideas is key to maturity.
And if God trusts people to read, why shouldn’t secular leaders do the same? Indeed, the act of censorship reflects an underlying distrust of the English people. “Lords and commons of England!” he exclaims, “consider what nation it is whereof ye are, and whereof ye are the governors: a nation not slow and dull, but of a quick, ingenious, and piercing spirit; acute to invest, subtile and sinewy to discourse, not beneath the reach of any point the highest that human capacity can soar to.” By not allowing the English people to engage with ideas—both productive and dangerous ones—Parliament insults national character, turning ideas into a “staple commodity . . . to mark and license it like our broadcloth and our woolpacks.” The English hold many opinions and “opinion in good men is but knowledge in the making.” Instead of acts of suppression in Westminster, Milton hopes that “[a] little generous prudence, a little forbearance of one another, and some grain of charity might win all these diligences to join and unite in one general and brotherly search after truth.”
Free expression therefore is to be defended not simply because it is a means to gaining knowledge, but because a proud society has enough trust in its citizens to trust them with difficult ideas. For Milton, however, there is a limit to such freedom. He adamantly supports the suppression of Catholic texts, in violation of the very principles of free expression that he otherwise espouses. He rejects “tolerated popery and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpate, provided first that all charitable and compassionate means be used to win and regain the weak and the mislead.” Despite his clarion call for tolerance, Milton’s own prejudice against Catholics is strong, and in the context of his polemic both ironic and troubling. In his robust defense of expression, Milton falters with respect to one of England’s most firmly oppressed minority groups. The harm to English political mores from Catholicism is simply too great.
Free expression is to be defended not simply because it is a means to gaining knowledge, but because a proud society has enough trust in its citizens to trust them with difficult ideas.
Such harm from speech is regularly raised today as a justification for limiting free speech, and the most thoughtful defender of this harm principle, John Stuart Mill, was also one of the most ardent defenders of free expression and liberal democracy. The opening of Mill’s On Liberty (1859) is worth quoting in full:
If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner, if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation—those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.
Here is a bold defense of minority speech and the belief that society benefits from engaging with dissenting thought, no matter how erroneous. Mill later explains, however, that “[a]s soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion.” He explains that not all harms justify such intervention (“The acts of an individual may be hurtful to others or wanting in due consideration for their welfare, without going to the length of violating any of their constituted rights”). Yet in certain circumstances intervention would be appropriate. Mill gives the example of a claim that “corn dealers are starvers of the poor, or that private property is robbery.” While such claims may be freely circulated through the press, he suggests that they may “justly incurpunishment” when delivered before an assembled mob outside the home of a corn dealer when violence may follow. That is, the threat of violence and physical harm could be enough to limit speech.
Free speech jurisprudence in America has long reflected this concern with harm. In United States v. Schenck, a now-overturned case from 1919, Justice Oliver Wendell Holmes, Jr. famously wrote that the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” The types of harms that can limit speech vary from generation to generation. In Schenck, the Court determined that advocating draft repeal during wartime created a “clear and present danger” that Congress had the right to prevent. Today, those harms are deemed by some to include the potential psychological trauma that overt or subtle racist statements (known as “microaggressions”) and other offensive speech may inflict on students. As the definition of harm expands, so expand the limits of free speech. In many ways, today’s debates about free speech seem less to be about free speech than about how broadly to define harm and exactly how harmful offensive language may be. This is as much a battle among psychologists and medical experts as it is a battle between younger and older generations. And with no clear means to determine what harms are truly harmful, many seem to be hedging their bets in favor of a more inclusive definition of harm that could further limit speech.
Milton and Mill, both staunch defenders of free expression, provide useful reminders of the complexity of that freedom. It would be a tremendous loss to ignore Milton’s powerful prose and otherwise compelling arguments because of his anti-Catholicism. Yet it would be a disservice to our understanding of the history of free expression to ignore that anti-Catholicism as merely a symptom of living in seventeenth-century England. Milton’s stance reflects the extent to which free expression is always subject to contemporary mores and fancy—mores and fancy which themselves should be subject to scrutiny when they encourage silence rather than speech. Meanwhile, Mill’s ardent defense of free speech is tempered by the realization that his harm principle relies on a definition of harm that varies from era to era. As that definition expands, the justifications for limiting speech expand too. Both Milton and Mill reflect the extent to which context affects the contours of a fundamental right.
An honest portrayal of free expression demands a recognition of the difficulty that such freedom entails. Conveniently for its defenders, the challenge of balancing the benefits and potential harms of free expression demands more expression. The present discomfort caused by attacks on free speech provides a useful reminder that from a young age children should be taught that free expression is a fundamental right—one which is necessary for their own maturity as well as the maturity of the country. They should understand the various ways in which speech matters, and understand further the risks involved in censorship. Upon being confronted with any indication of censorship, the engaged citizen of any age should pause and consider whether such censorship is appropriate. Perhaps the law will require censorship or punishment. Yet at the very least a citizen should reflect on whether the other voice should in fact be heard, and whether silence is more appropriate than speech. On balance, silence should rarely win. After all, defending speech—no matter how challenging—is the privilege, responsibility, and challenge of self-governance.
This article originally appeared in The New Criterion, Volume 37 Number 1, on page 24
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