Freedom of Speech and the Press: An Enduring Enlightenment Legacy

On November 23, 1644, John Milton published a pamphlet that was, by his own later admission, “the fruit of a particular season” and that he expected to be quickly forgotten. Areopagitica — the title is a gesture toward the Athenian constitution of Isocrates, but the substance is an attack on the English Parliament’s licensing system for the press — argued, in a prose that has not been matched in English since, that the attempt to suppress the free exchange of ideas is both futile and counterproductive. The pamphlet was officially ignored. The licensing system was renewed in 1647 and again in 1653, and it remained in force, in one form or another, until 1694.

Milton had the bad luck to be right ahead of his audience by about half a century. The principle he was arguing for — that truth is sufficiently robust to defend itself in open encounter, and that the proper response to error is more speech, not less — is the principle that the modern First Amendment, the European Convention on Human Rights, and Article 19 of the Universal Declaration of Human Rights are all attempts to put into legal form. He had to write it twice, in 1644 and again in the famous 1659 Treatise of Civil Power, before anyone with the authority to act was listening.

The defence of freedom of speech and of the press is, accordingly, one of the most important and most enduring contributions of the Enlightenment to modern political thought. The thinkers of the seventeenth and eighteenth centuries did not invent the idea of free expression; classical Athens had more of it than any modern state. They did something more useful: they gave it a philosophical foundation that the modern constitutional state could build on.

The system they were fighting against

The system of censorship that the Enlightenment inherited was elaborate. The Catholic Church maintained its Index of Forbidden Books, first issued in 1559 and continually updated for four centuries. Protestant states had their own systems, generally designed to prevent the circulation of Catholic and other heretical works. The English licensing system, established under Henry VIII and tightened under the early Stuarts, required every book to be approved by the Stationers’ Company and the Archbishop of Canterbury before publication. Books printed without approval were confiscated; printers and authors were punished; foreign books were inspected at the ports. The French system, run by the Chancellerie and the Parlement, was, if anything, more thorough.

The English Civil War and the Interregnum changed the picture. The 1640s saw an unprecedented outpouring of political pamphlets and religious tracts, as the various factions — Presbyterian, Independent, Leveller, Royalist, Quaker — attempted to mobilize public opinion. Milton was one of the most prolific of the pamphleteers, and his political writings of the period are the founding texts of the English republican tradition. The 1688 Glorious Revolution and the Act of Toleration of 1689 marked a more liberal period. The licensing system was allowed to lapse in 1694, and the relative freedom of the English press in the eighteenth century — the Tatler, the Spectator, the Review, and the long sequence of controversial periodicals — is the direct consequence of that lapse. The French did not get a comparable opening until 1789, and the Germans not until the early nineteenth century.

Milton’s Areopagitica

Milton’s Areopagitica is the founding document of the modern defence of freedom of speech, and it is worth pausing on. The central argument is in the famous sentence: “Let her [Truth] and falsehood grapple; whoever knew truth put to the worse, in a free and open encounter?” The image is, by intention, combative. Truth is not a delicate flower; it is a wrestler. The argument is not that speech is harmless; it is that the harmfulness of false speech is best cured by the open competition of true speech, and that the suppression of speech on the ground of its harmfulness gives the suppressors a power they will inevitably abuse.

Milton was not a modern liberal. He argued, in the Areopagitica, for the licensing of books before publication; he wanted the state to continue to license books, but he wanted the licensing to be done well. He changed his mind in 1659 and argued for unlicensed printing outright. The later position is the more interesting one, and it is the one that influenced the eighteenth-century debate.

Milton’s deeper argument was theological. He had been troubled, for years, by the question of why God had permitted evil to enter the world. His answer, in Paradise Lost, was that the permission of evil was necessary for the possibility of free obedience; without the possibility of disobedience, there could be no genuine virtue. The argument of the Areopagitica is a political application of the same insight: the suppression of error prevents the genuine assertion of truth, just as the prevention of sin prevents the genuine assertion of virtue. The principle is not utilitarian (“truth wins in open debate”); it is moral (“open debate is the condition of genuine assent”). This is the strong version of the principle, and it is the version that the modern defence of free speech has, in some ways, lost sight of.

Locke and the limits of the magistrate

John Locke (1632–1704) developed a more systematic argument in the Letter Concerning Toleration (1689) and the Two Treatises of Government. The argument of the Letter is deceptively simple: the proper function of the state is the protection of the civil interests of the citizens — their life, liberty, health, and property — and the state has no authority to use force in matters of religious belief and opinion. The magistrate is not competent to determine the truth of contested religious questions; the attempt to enforce religious orthodoxy by force is both unjust and ineffective.

Locke’s argument had two prongs, and it is worth distinguishing them. The first is the principle of state competence. The magistrate has no special expertise in religious truth, and the attempt to use the coercive power of the state to enforce a particular religious view is therefore an abuse of power. The second is the futility of coercion. The attempt to compel belief cannot actually produce belief, since the will cannot be coerced; it can only produce hypocrisy. The combined effect of the two arguments is that the state has neither the right nor the ability to enforce religious conformity.

Locke was not, however, an absolute libertarian. He excluded from the scope of toleration those whose doctrines are inconsistent with the safety of the state — Catholics, on the grounds that they owe allegiance to a foreign prince; atheists, on the grounds that they cannot be trusted to keep their promises because they have no fear of divine retribution. These exclusions were embarrassing even at the time, and the subsequent tradition has rightly abandoned them. But it is worth noticing that they were there, and that they remind us that the original defence of free speech was a qualified defence, not an absolute one.

Voltaire and the campaign

Voltaire (1694–1778) was the most famous defender of freedom of speech in the eighteenth century, and the reason is that he turned the case for toleration into a series of moral campaigns. The Calas affair (1761–1765), the Sirven affair (1762–1771), and the La Barre affair (1766–1766) were the three most famous. In each case, an innocent person was tortured and killed on a charge connected to religion — a Protestant merchant accused of murdering his son to prevent his conversion, a Protestant family accused of murdering their daughter, a young nobleman accused of impiety for failing to doff his hat at a religious procession. In each case, Voltaire used his pen, his European reputation, and his network of correspondents to make the case of the victim into a European cause.

The famous slogan — “I disapprove of what you say, but I will defend to the death your right to say it” — was actually written by Voltaire’s English biographer Evelyn Beatrice Hall, summarizing his views in her 1906 The Friends of Voltaire. The fact that the slogan is misattributed is itself instructive: Voltaire’s actual position was a little messier than the slogan suggests. He was perfectly willing to suppress speech that he regarded as malicious or seditious; he was not a pacifist about the defense of speech; and his Dictionnaire philosophique contains entries that are, in the modern sense, deliberately offensive to religious believers. The slogan captures the spirit of his position, but it is too clean.

The point worth keeping is that Voltaire’s defence of free speech was practical in a way that Milton’s and Locke’s were not. He was defending a principle by defending particular victims. The principle mattered; the victims mattered more. This is a useful reminder that the modern defence of free speech has always been, at its best, a defence of particular speakers against particular suppressors, and not just an abstract commitment to a constitutional doctrine.

The French materialists and the Encyclopédie

The French materialists — Diderot, d’Holbach, Helvétius, La Mettrie, and the rest of the radical wing of the French Enlightenment — developed a thoroughgoing defence of freedom of speech as a basic principle of the new philosophy. The Encyclopédie, of which Diderot was the principal editor, was the most visible expression of this position. The Encyclopédie was, in a sense, an act of free speech: the project had been officially licensed in 1745 as a translation of Chambers’s Cyclopaedia, and Diderot quietly turned it into a manifesto of the new philosophy. The book was repeatedly censored. The Privilege was revoked in 1759. Diderot kept working on it anyway, in semi-clandestine conditions, and the work was published. The point worth noting is that the defence of free speech and the practice of free speech were, in the French case, the same thing.

The First Amendment and the French Declaration

The Enlightenment defence of freedom of speech was, by the late eighteenth century, ready to be put into legal form. The American First Amendment — “Congress shall make no law… abridging the freedom of speech, or of the press” — was ratified in 1791, and it is the most concise statement of the principle in any modern constitution. The American defence of free speech has been developed in a long series of Supreme Court decisions, beginning with the famous Schenck v. United States (1919), in which Justice Oliver Wendell Holmes developed the “clear and present danger” test. The French Declaration of the Rights of Man and of the Citizen (1789) was more equivocal. Article 11 states: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but he shall be responsible for such abuses of this freedom as shall be defined by law.” The article affirms the right and immediately qualifies it. The French tradition has, accordingly, been more willing than the American to allow regulation of speech, especially of speech that offends public order or religious sentiment.

The contemporary international standards of freedom of speech are direct descendants of the Enlightenment tradition. Article 19 of the Universal Declaration of Human Rights (1948) provides that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The various covenants and conventions that have followed — the International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights — all contain similar provisions. The principle is now one of the foundations of the international human rights regime.

What about the limits?

The Enlightenment defenders were not absolute libertarians, and neither are their modern heirs. The modern law of free expression has developed a complex set of categories of unprotected speech: incitement to imminent lawless action; true threats; fraud; defamation; obscenity; child pornography. Each of these categories is the subject of extensive legal and philosophical debate, and the proper balance between the protection of free expression and the protection of other important interests is one of the central problems of contemporary constitutional law. The philosophers are not of one mind: some hold that the only legitimate restriction is the prevention of direct, imminent, and severe harm to others (Mill’s principle, in the 1859 On Liberty); others hold that there is a broader principle of dignitary harm that the state is entitled to protect. The debate is not closed.

Why this still matters

The contemporary challenges to freedom of speech are different from those faced by the eighteenth-century defenders, and they are arguably more difficult. The digital revolution has transformed the production and dissemination of information; social media has made it possible for individuals to communicate with vast audiences; the rise of disinformation and “fake news” has made it more difficult for the public to discern the truth; the rise of hate speech has made it more difficult to balance the protection of free expression with the protection of vulnerable groups. The basic Enlightenment commitment — to the principle that the proper functioning of the political and intellectual life requires the free exchange of ideas, and that the attempt to suppress this exchange is both futile and counterproductive — remains the basic commitment of contemporary democratic thought. The hard question is how to honor that commitment in conditions that the eighteenth-century defenders could not have imagined.