The History of Free Speech: From Milton to Modern Constitutional Protections

The modern defense of freedom of speech is one of the most important legacies of the Enlightenment. The principle that individuals should be free to express their opinions without fear of governmental interference has become a basic feature of contemporary constitutional law and international human rights. This article traces the history of the modern defense of free speech, from its early modern defenders to its contemporary constitutional embodiments.

The Early Modern Defenders

The early modern defense of free speech was developed in the context of the struggles against the systems of censorship and control that had characterized the early modern European states and churches.

The first major defender of free speech in the modern period was John Milton (1608–1674), whose Areopagitica (1644) was a powerful attack on the licensing system of the English press. Milton’s argument was based on the principle that truth is self-evident, and that the proper response to error is more speech, not less. “Let her and falsehood grapple,” he famously wrote, “whoever knew truth put to the worse, in a free and open encounter?”

The second major defender of free speech was Baruch Spinoza ([content/cluster/thinkers/spinoza]), whose Theological-Political Treatise (1670) developed a systematic defense of the freedom of thought and the freedom of speech. Spinoza argued that the attempt to suppress free speech was both futile and counterproductive, and he advocated for a comprehensive system of religious toleration and freedom of expression.

The third major defender of free speech was John Locke ([content/cluster/thinkers/locke]), whose Letter Concerning Toleration (1689) and other works developed a systematic defense of the principle that the state has no authority to use force in matters of religious belief and opinion. Locke’s argument was an important contribution to the development of the modern theory of free speech, and it had a direct influence on the American and French revolutions and on the development of the modern principles of religious freedom and free expression.

The Eighteenth-Century Development

The defense of free speech was developed further in the eighteenth century, especially in the context of the Enlightenment and the American and French revolutions.

Voltaire ([content/cluster/thinkers/voltaire]) was one of the most famous defenders of free speech in the eighteenth century. His campaign on behalf of victims of religious intolerance, and his defense of the principle that all human beings deserve the right to express their opinions without fear of persecution, made him one of the most celebrated defenders of free speech in the modern period.

Thomas Jefferson ([content/cluster/thinkers/jefferson]) was another important defender of free speech in the eighteenth century. His Notes on the State of Virginia (1785) included a famous argument against the suppression of ideas, in which he argued that “it is an established rule of morality, in all free governments, to leave it to the opinion of the people to determine the truth or falsehood of any proposition.”

The American Revolution produced the First Amendment to the United States Constitution, which provides that “Congress shall make no law… abridging the freedom of speech, or of the press.” The Amendment was a direct expression of the Enlightenment principles of free expression, and it has been the basis of a rich body of American constitutional law on the proper limits of governmental regulation of speech.

The French Revolution produced the Declaration of the Rights of Man and of the Citizen of 1789, which proclaimed the freedom of speech as one of the natural and imprescriptible rights of man. The French principle of freedom of speech has been the basis of a series of French laws regulating the press, and it has been an important contributor to the modern defense of free expression.

The Modern Constitutional Protections

The modern constitutional protection of free speech is, in large part, a direct descendant of the Enlightenment defense of free speech.

The First Amendment to the United States Constitution, ratified in 1791, is the most famous constitutional protection of free speech. The Amendment has been the subject of a long series of Supreme Court decisions, including the famous Schenck v. United States (1919), in which Justice Oliver Wendell Holmes developed the “clear and present danger” test, and the various subsequent decisions that have refined and extended the protection of free expression.

The European Convention on Human Rights, adopted in 1950, includes Article 10, which provides for the freedom of expression. The European Court of Human Rights has developed a substantial body of jurisprudence on the proper limits of the freedom of expression, and the European Convention has been an important force in the development of the modern protection of free speech in the European countries.

The contemporary international standards of free 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 Contemporary Challenges

The contemporary challenges to the principle of free speech are different from those faced by the Enlightenment defenders, but they are no less pressing.

The first major contemporary challenge is the rise of the digital revolution, which has transformed the production and dissemination of information, and which has raised new questions about the proper regulation of online speech.

The second major contemporary challenge is the rise of social media, which has made it possible for individuals to communicate with vast audiences, and which has raised new questions about the proper responsibility of platforms for the content that they host.

The third major contemporary challenge is the rise of disinformation and “fake news,” which has made it more difficult for the public to discern the truth, and which has raised new questions about the proper response to deliberate misinformation.

The fourth major contemporary challenge is the rise of hate speech, which has made it more difficult to balance the protection of free expression with the protection of vulnerable groups, and which has raised new questions about the proper limits of the modern principle of free speech.

The Continuing Significance

The Enlightenment defense of freedom of speech remains one of the central contributions of the Enlightenment to modern thought, and the contemporary engagement with the principle is part of the broader engagement with the political philosophy of the Enlightenment.

The basic commitment of the Enlightenment — 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 a basic commitment of contemporary democratic thought.

Further Reading

• The Stanford Encyclopedia of Philosophy (plato.stanford.edu), relevant entry
• Mark Goldie & Robert Wokler, eds., The Cambridge History of Eighteenth-Century Political Thought (2006)
• Terence Ball, Reappraising Political Theory (1995)