Right/Freedom of Expression/Philosophical Origins

Freedom of Expression

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

What have religious and philosophical traditions contributed to our understanding of this right?

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Behaviorism 🖉 edit

Burrhus Frederic Skinner, a notable American psychologist specializing in behaviorism, interpreted freedom as a conditioned misunderstanding. Expression would be classified as individual behavioral responses to environmental stimuli as it concurs with Skinner’s operant conditioning (Cherry 2023). His contribution suggests that behaviors that are rewarded are more likely to occur again and those that are punished will have a reduced likelihood of recurrence. This exists in the context of the behaviorist approach introduced to the field of psychology by John B. Watson. Also known as the father of behaviorism, he claims behaviorism “is a purely objective experimental branch of natural science. Its theoretical goal is the prediction and control of behavior” (Watson 1913, 158–177). Accordingly, inner thoughts and experiences are disconsidered as independent phenomena and behavior consists of actions that are externally shaped and conditioned. Freedom of expression would thus be understood as a fallacy under behaviorism, due to the idea that humans are inevitably shaped by their environment and not by their determined expression.

A truly free expression, shaped by personal, mental, complex internal influences, is nonexistent in the world of behaviorism as it relates to Skinner. The fundamental ability to express oneself, granted and protected by a governmental institution, is distinguished from the freedom to control how expression is shaped. A behaviorist approach would analyze expression as it relates to the environmental influences that shaped it. Where this approach conflicts with true freedom is the source of expression and not the act of expression itself. Skinner writes, “A person never becomes truly self-reliant. Even though he deals effectively with things, he is necessarily dependent upon those who have taught him to do so” (Skinner [1971] 2024, 24). His conclusion suggests there cannot be an expression that exists independently from a source of control because people exist in environments that are shaped by people and structures in influential positions. Thus, rather than refuting this idea on the grounds of social empowerment, Skinner rejected a nonscientific approach and suggested manipulating the environment to influence people’s actions (Skinner [1971] 2024, 24). Skinner did not propose this as a recommendation for only the future, rather as a societal constant that can be shaped to benefit the world. “He argued that our increasingly detailed knowledge of behavior principles can be used in designing and engineering the environmental conditions needed to produce intentionally designed behaviors” (Baldwin, “Mead and Skinner,” 115). Behaviorism is inherently permissive of expression and does not impede on the common right of freedom of expression. However, its approach is distinguished by the understanding of how free expression can be and is controlled.

Skinner modeled this control, known as operant conditioning, in a chamber commonly known as a skinner box. In this model experiment, the subject is put in a box and is rewarded or punished based on the chosen actions. Skinner experimented with rats and eventually pigeons, but his efforts encouraged a more encompassing perspective wherein humans are the subject and the world is the box. Skinner’s book, Beyond Freedom and Dignity, offers further insight into the radical behaviorism that underlines his beliefs. He encouraged psychological research in an effort to provide order to society and shape behaviors, thereby devaluing human agency and the idea of free will. He noted, “Dependence on things is not independence,” to explain why people cannot be considered free agents, because they rely on people and institutions like schools and teachers to learn (Skinner [1971] 2024, 91). Implications on freedom of expression are dependent on whether one adopts this perspective or not. For the behaviorist, especially those like Skinner who are considered radical, freedom of expression may have never existed due to the environment predetermining what is learned. In a 1958 article for Science, Skinner exemplified a practical application of this approach. He wrote, “Teaching spelling is mainly a process of shaping complex forms of behavior” (Skinner 1958, 971). The comprehensive behaviorist approach acknowledges the source and the product of human behavior and does not regard freedom of expression as separate from the scope of control.

While there is criticism within the behaviorist approach which sees flaws in societal structures rooted in lack of control from actors in influential positions, Skinner proposes solutions in his book. “The Skinnerian framework not only suggests sources of such behavior but also provides a rationale for the treatment of deviance” (Bassiouni and Sewell, "Scientific Approaches," 1350). In addressing societal imperfections, Skinner encouraged the production of a technology of behavior that would influence public policy based on behaviorist psychology studies. (Skinner [1971] 2024, 10). He suggests this technology to be useful in preventing “the catsrophe,” as he writes throughout his book. He then lists some catasrophes being “unchecked breeding, the urestrained affleunce which exhausts resources and pollutes the environment, and the imminence of nuclear war” (Skinner [1971] 2024, 208-209). Skinner’s suggested technology aims to understand human behavior to prevent foreseen dangerous outcomes and create an “environment which makes [people] wise and compassionate” (Skinner [1971] 2024, 168). However, critics of Skinner’s contributions argue against the control he suggests due to its totalitarian nature, effectively reducing the accessibility to freedoms. Noam Chomsky, a prominent linguist and activist, wrote an essay, The Case Against B.F. Skinner, in response to B.F. Skinner’s Beyond Freedom and Dignity, in which he wrote “He is accused of immorality and praised as a spokesman for science and rationality in human affairs” (Chomsky, 1971, 1). The behaviorist approach emphasizes strict adherence to science, while critics may claim that behaviorism neglects important scientific factors due to an exclusive focus on external and observable factors. Freedom of expression, being a field of study that is more easily observed, may be interesting to a behaviorist because its application is seen in people’s behavior.

References

Baldwin, John D. "Mead and Skinner: Agency and Determinism." Behaviorism 16, no. 2 (1988): 109–27. http://www.jstor.org/stable/41236063.

Bassiouni, M. Cherif, and Alan F. Sewell. "Scientific Approaches to Juvenile Delinquency and Criminality." DePaul Law Review 23, no. 4 (Summer 1974): 1344–1407.

Cherry, Kendra. 2023. “What Is Operant Conditioning?” Verywell Mind. February 24, 2023. https://www.verywellmind.com/operant-conditioning-a2-2794863.

Chomsky, Noam. n.d. “The Case against B.F. Skinner.” https://www.ehu.eus/HEB/wp-content/uploads/2012/KEPA/The%20Case%20Against%20B.F.%20Skinner.pdf.

Skinner, B. F. Beyond Freedom and Dignity. Cambridge, MA: Hackett Publishing, 2024.

Skinner, B. F. 1958. “Teaching Machines: From the Experimental Study of Learning Come Devices Which Arrange Optimal Conditions for Self-Instruction.” Science 128, no. 3330 (October): 969–77. https://doi.org/10.1126/science.128.3330.969.

Watson, John B. "Psychology as the Behaviorist Views It." Psychological Review 20, no. 2 (1913): 158–177. https://doi.org/10.1037/h0074428.

“What Is Behaviorist Theory? Understanding Its Influence on the Work of a Behavior Analyst - Behavioral Collective.” 2021. June 8, 2021. https://behavioralcollective.com/insights/what-is-behaviorist-theory/#:~:text=Radical%20behaviorism%20is%20.

Roman Legal and Political Thought 🖉 edit

Freedom of expression was seen as an essential virtue of Roman citizenship at the time of the Roman Republic. This altered in the early Roman Empire when freedom of expression was contested and eventually suppressed. Octavius Augustus (rule 30 BC-AD 14), first emperor of Rome, “established an autocratic form of government, where he was the sole ruler and made all important decisions”. Although Romans had long maintained that political dominance by one person was the opposite of liberty, Augustus portrayed his dictatorial rule of the Roman state as a democratic act. In Augustus' opinion, he had returned liberty (libertas) to Rome by first liberating the Roman world from the senators who had taken power by assassinating Julius Caesar, and then by eliminating the threat of foreign domination presented by Cleopatra and her lover Marc Antony (Watts, 2020, p.13, para.3). As Augustus and his allies understood it, liberty meant freedom from internal conflict and foreign intervention, which could only come with the security and political stability that Augustus gave. Officials regularly banned or destroyed objectionable literature during the period, and they punished, banished, or executed anybody who published anything negative of the emperors or the government. It is difficult to tell how later Romans governed political discourse. For most of the Republic, elite political speech was protected, but social customs and career possibilities meant that most elite Romans nevertheless maintained significant self-censorship (Watts, 1970, pp.159-60).

During his consulate in 59 B.C., Julius Caesar (rule 49 BC-44 BC) mandated the recording of regular procedures of senate proceedings. Under his orders, these stenographic reports, known as acta senatus, were published alongside the populi acta diurna, Europe’s first newssheet. Even after the civil war, Caesar allowed the senatorial sessions to be published indefinitely. Citizens of the Roman Empire generally enjoyed freedom of expression and the freedom of publishing writings. Augustus put an end to this practice, never again resumed in the history of Rome (Lintott, 2015, p.83, para.3). After that, the acta diurnal published only those sections of the senatorial discussions that the imperial emperor deemed suitable to print. By removing the full publicity that senate opponents had enjoyed since 59 B.C., Augustus deprived his senatorial opponents of the right to publish their opinions alongside those of the monarchic side in the official bulletin (Cramer, 1945, p.161).

The legislation was the same as it had been in the past, but other subjects fell within its jurisdiction, such as betrayal of an army, encouraging the common people to insurrection, or, more broadly, maladministration in public office (Cramer, 1945, p.170, para.1). Words were not penalized, but actions were. Augustus was the first to expand the scope of this legislation to include literature criticizing the administration. The new restrictions on free expression went even further. Censorship began to infiltrate educational classrooms. Professors found themselves in hot water after debating two sides of Augustus' official stance in class. For example, the case of professor Corvus showed the full ferocity of the new anti-freedom of expression and writing campaign (Cramer, 1945, p.170). Corvus once gave a public talk about the pros and cons of a woman's advice to married women to have no children. Augustus was particularly sensitive about birth control and celibacy. He has often advocated for legislation to reverse the trend of Rome's declining birthrate, particularly among the aristocratic class. Corvus was hauled into court for having harmed the state. Consequently, it became a standard practice to submit to school students of oratory the following topic for composition: “Cicero considers whether he should burn his writings, as Anthony promises him life if he does so” (Cramer, 1945, p.173, para.4).

Though no death sentence was meted out for just verbal or written criticisms on the government during Augustus' lifetime, the legal instrument for future executions was now formed (Cramer, 1945, p.171). After a formal judgement of guilty was given against their creator, a new sort of penalty was created for the new type of crime, the burning of the incriminating writings. In minor crimes, a guilty author's works may be sentenced to the stake; in graver cases, his whole lifework may be consigned to the flames under such a judgment. It was not long before the next obvious step was taken private ownership of condemned publications, as well as reading them, became a crime.

Because there was no clear system for identifying and punishing even traitorous statements, most restrictions on free speech in late antiquity stemmed from self-censorship rather than real imperial actions (Watts, 1970, p.159). People occasionally made the decision not to express what they want because they believe their words will have negative impacts. This makes self-censorship during the Roman Republic difficult to trace since it is, at its most basic, the act of a person anticipating a reaction to what he thought but never felt comfortable speaking or writing. Thus, authors often refuse to speak out or publish writings under circumstances when doing so may advertise their own weakness.

References

Lintott, A. W. (2015). The Constitution of the Roman Republic. Oxford University Press.

Watts, E. J. (1970). Introduction: Freedom of speech and self-censorship in the Roman Empire. CORE. https://core.ac.uk/display/153913094

Watts, E. J. (2020). Mortal Republic: How Rome fell into tyranny. Basic Books, an imprint of Perseus Books, LLC.

Cramer, F. (1945). Bookburning and Censorship in Ancient Rome: A Chapter from the History of Freedom of Speech. Journal of the History of Ideas. www.jstor.org/stable/2707362

Social Darwinism 🖉 edit

Social Darwinists generally did not advocate for or against freedom of expression. Rather, they spoke to the justified consequences of certain types of expression under the notion that individuals and groups were free to express themselves how they so choose. According to Richard Hofstadter, “the most popular catchwords of Darwinism, ‘struggle for existence’ and ‘survival of the fittest,’ when applied to the life of man in society, suggested that nature would provide that the best competitors in a competitive situation would win, and that this process would lead to continuing improvement” (Hofstadter, 1944, 6). It was often used to justify imperialism, racism, eugenics, and poverty as well as argue for a laissez-faire economic model (History, 2018). Freedom of expression, though not at the forefront of Social Darwinism, was relevant to Social Darwinist thought as certain forms of expression were seen as evidence of a group’s superiority or inferiority.

William Graham Sumner, a prominent Social Darwinist thinker of the late 19th and early 20th centuries, wrote about the societal implications of social customs in his book, Folkways in 1907. While he did not explicitly write about freedom of expression, he detailed the effects of different types of social expression. In Chapter V, Societal Selection, he stated, “[w]e are familiar with the fact that when a fashion has been introduced and has become common our eye is formed to it, and no one looks "right" or stylish who does not conform to it,” (Sumner, 1907,186). With fashion, people are free to dress however they like, but those who do not dress as the norm (unable to properly adapt to the environment) will face societal consequences. In order to have good standing in society, one must tailor their expression to what society deems appropriate, reiterating a social “survival of the fittest” environment. Those deemed unfit are considered social outcasts, which could lead to a variety of possible consequences. While individuals have freedom of expression legally, the social norms and expectations of society govern people’s expression; adapt to the norm, or face the consequences. Sumner further wrote in relation to fashion that “[h]e who dissents is thought rustic and boorish. He is more or less severely boycotted, which means not only that he is made to suffer, but that he loses important advantages and hurts his interests” (Sumner, 1907, 192). The societal consequences of expressing oneself differently than the norm might coerce individuals to adapt and comply with the popular fashion.

In addition to expression through one’s appearance, Sumner discussed oral expression, specifically when using slang and expletives: “There is a need for expression which will win attention and impress the memory. A strong expletive shocks an opponent, or it is an instinctive reaction on a situation which threatens the well-being of the speaker” (Sumner, 1907, 197). People had the ability to express themselves how they wished, so to Sumner, the consequences of their choices were justified; appropriate expression resulted in social success, and unfit expression resulted in social failure.

In Folkways, Sumner briefly spoke about political expression in the form of symbolism:

“The middle [class] is greatly affected by symbolism. ‘The flag’ can be developed into a fetich. A cult can be nourished around it. Group vanity is very strong in it. Patriotic emotions and faiths are its favorite psychological exercises, if the conjuncture is favorable and the material well-being is high. When the middle [class] is stirred by any spontaneous and consentaneous impulses which arise from its nature and ways, it may produce incredible results with only a minimum of organization” (Sumner, 1907, 58).

Sumner argued that symbolic expression is powerful in uniting a group of people, especially around topics of class and national identity. However, he did not imply whether Social Darwinists such as himself find this to be positive or negative, just that groups can take great advantage of free political expression. In Social and natural Darwinism, organizations play a pivotal role. They serve as interactors, defined by Hodgson and Knudsen as “a relatively cohesive entity that… interacts with its environment in such a way as to lead to changes in the population of interactors and their replicators. Social organizations are obvious candidate interactors” that contribute to the survival and evolution of a population by creating routines, habits, and environments where individuals can communicate and teach one another (Hodgson, 2013). When applied to a sociopolitical context and freedom of expression, social organizations can utilize freedom of expression to serve similar purposes, spreading ideas, establishing social norms, and creating a shared identity as seen in Sumner’s statement on political symbolism.

Herbert Spencer, another prominent Social Darwinist from the 19th century, spoke briefly but more specifically on his opinion of freedom in a famous quote regarding his “formula for justice” in The Principles of Ethics: “Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man" (Spencer, 1887). Spencer’s view on freedom of expression is more clear-cut than Sumner, providing that people should be able to express themselves freely, even though he did not name the right directly. In his article on Spencer’s moral philosophy, Weinstein detailed how “[e]qual freedom was the centrepiece of Spencer’s political philosophy. Moral rights lent this centrepiece substance and integrity” (Weinstein, 1990, 127). Additionally, Spencer “[h]aving argued that freedom of action is instrumentally indispensable to the pursuit of desires and happiness, Spencer then asserts that all individuals ought to have freedom of action. Since all are endowed with faculties, and are thus bound by God’s will to exercise them, all must have freedom to act” (Weinstein, 1990, 121). Freedom is essential to the pursuit of happiness in Spencer’s view, and though he cited freedom of action, that action may include expression so long as it does not infringe upon the freedom of others.

References:

History. 2018. “Social Darwinism.” History.com. https://www.history.com/topics/early-20th-century-us/social-darwinism

Hodgson, Geoffrey. 2013. “Understanding Organizational Evolution: Toward a Research Agenda using Generalized Darwinism.” Organizational Studies, 34 no. 7, 973-992. https://doi.org/10.1177/0170840613485855

Hofstadter, Richard. 1944. Social Darwinism in American Thought. Beacon Press. http://groupelavigne.free.fr/hofstadter1955.pdf

Spencer, Herbert. 1887. The Principles of Ethics in “Herbert Spencer, Principles of Ethics (1887).” Online Library of Liberty, Liberty Fund, 1978. https://oll.libertyfund.org/pages/herbert-spencer-principles-of-ethics-1887

Sumner, William Graham. 1907. Folkways on “The Project Gutenberg eBook of Folkways,” Project Gutenberg, 2008. https://www.gutenberg.org/cache/epub/24253/pg24253-images.html

Weinstein, D. 1990. “Equal Freedom, Rights and Utility in Spencer’s Moral Philosophy.” History of Political Thought, 11 no. 1. 119-142. https://www.jstor.org/stable/26213841

“William Graham Sumner.” n.d. Encyclopedia Britannica. Accessed June 27, 2024. https://www.britannica.com/biography/William-Graham-Sumner

Ancient Chinese Philosophy 🖉 edit

Noted by Daniel Bell, professor of ethics and political philosophy and director of the Centre for International and Comparative Political Philosophy at Tsinghua University in Beijing, Confucius emphasized the importance of free political speech in The Analects. Conveyed by Bell, Confucianism supports civic engagement through political debate, a key element of free expression. Though, several other areas of the Analects dismiss certain forms of speech. For example one section of The Analects pronounces, “Crafty speech disrupts virtue” (The Analects of Confucius). While sections such as these condemn specific types of speech, they do not enforce a legal framework for restricting them. Thus, although Confucianism provides a framework for what qualifies as just speech, it does not explicitly urge followers to refrain from engaging in certain types of dialogue. In this way, Confucianism appears to promote freedom of expression. On the contrary, Legalism, with its focus on strong authoritarian power, promotes restrictions on free speech, weakening the right to free expression. Legalist scholar Han Feizi emphasizes this, stating, “Accordingly, in the country of an enlightened ruler there are no texts written in books and on bamboo strips, but the law is the teaching; there are no “speeches” of former kings” (Pines, 16). As noted by Han Feizi, within the legalist society, there are no teachings and works to be produced other than the laws created by the ruler. Thus, the principles of legalism directly counter the development of the right to free expression, as civilians are restricted by law from expressing themselves. Furthermore, these Legalist notions are emulated in contemporary China, where the communist party rampantly restricts the right to free expression. Taoism upholds intellectual freedom, promoting followers to use their creativity to express themselves. Though, discussed by You-Sheng Li in "A New Interpretation of Chinese Taoist Philosophy", “Taoist Freedom of thought is different from the Western concept of free speech, free expression, and free press. The latter are all concerned with the social space in which free thoughts are expressed, and therefore are part of modern society. Taoist freedom is concerned with the individual himself.” Thus, Taoist philosophy asserts that while individuals should be entitled to the freedom of thought, this liberty is not necessarily applied to society. In this way, Taoism supports the freedom of the individual to express themselves, but not the universal legal entitlement to free expression.

References:

“Daniel Bell: What Would Confucius Make of Free Speech in the Internet Age?” Free Speech Debate, freespeechdebate.com/media/daniel-bell-on-confucianism-free-speech/.

The Analects of Confucius. chinatxt.sitehost.iu.edu/Analects_of_Confucius_(Eno-2015).pdf.

Pines, Yuri. “Legalism in Chinese Philosophy.” Stanford Encyclopedia of Philosophy, Stanford University, 16 Nov. 2018, plato.stanford.edu/entries/chinese-legalism/#TilSolRulPeo.

Freedom of Expression in China: A Privilege, Not a Right.” Freedom of Expression in China: A Privilege, Not a Right Congressional-Executive Commission on China, www.cecc.gov/freedom-of-expression-in-china-a-privilege-not-a-right.

Sheng-Li, You. “A New Interpretation of Chinese Taoist Philosophy.” Google Books, Google, books.google.com/books?id=SEkjW5Xjm6oC&pg=PT244&lpg=PT244&dq=taoism%2Band%2Bfree%2Bspeech&source=bl&ots=GU0DYRvvjk&sig=ACfU3U3iQSkzEC2ngOJUx7K63jYk9AQrrw&hl=en&sa=X&ved=2ahUKEwi158vBpr7qAhVEgXIEHUFzBrwQ6AEwEHoECAsQAQ#v=onepage&q=taoism%20and%20free%20speech&f=false.

Aristotelian thought 🖉 edit

Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today. Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001). In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.

References:

Aristotle and the Origins of Natural Rights, Fred D. Miller Jr., 878, 880, Philosophy Education Society Inc., 1996 United States.

Aristotle: Politics, Edward Clayton, Internet Encyclopedia of Philosophy, 2020 United States.

The First Founding Father: Aristotle on Freedom and Popular Government, Gregory R. Johnson, 30, 32, 36, 38-39, 44, Hoover Institution Press, 2001 Stanford.

The Value of Free Speech, Harvey C. Mansfield, American Enterprise Institute, 2018 Washington D.C.

Benthamite Utilitarianism 🖉 edit

To Bentham, the purpose of free expression, especially press, is to identify and censure government abuses, which Bentham believed would have more positive than negative consequences. Like other liberties in Bentham’s thought, it is an instrumental right, not an intrinsic right (Niesen 2019, 4). He worried that a chilling effect would prevent the press from serving its purpose, and he opposed censoring of “bad sentiments” (something Blackstone supported) because he did not trust society’s ability to identify them. Bentham not only advocated for the protection of true statements, but of false ones, provided they were not “‘groundless’ and made with ‘wilful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness” (Niesen 5). A “wilful mendacity” standard resembles the “actual malice” standard of contemporary American jurisprudence on libel of a public figure.

References:

Niesen, P. ‘Speech, truth and liberty: Bentham to John Stuart Mill.’ Journal of Bentham Studies, 2019, 18(1), pp. 1–19. DOI: https://doi. org/10.14324/111.2045-757X.046.

Buddhism 🖉 edit

The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism. In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, & Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism. In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).

In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe. Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression. Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.

References:

Buddhism and Democracy, Bstan-dzin-rgya-mtsho, Dalai Lama XIV, His Holiness The 14th Dalai Lama of Tibet, 1993 Washington D.C.

Buddhism and Free Speech, Sanitsuda Ekachai, Bangkok Post, 2015 Bangkok.

Buddhism and Human Rights, Wayne R. Husted, Damien Keown, Charles S. Prebish, 20, Curzon Press, 1998 Richmond.

Buddhism, Asian Values, and Democracy Journal of Democracy, vol. 10 no. 1, Bstan-dzin-rgya-mtsho, Dalai Lama XIV, 4, Johns Hopkins Press, 1999 Baltimore.

Buddhism: Basic Beliefs, United Religions Initiative Editors, United Religions Initiative, 2020 San Francisco.

Conditions of an Unforced Consensus on Human Rights, Charles Taylor, 101, Verso, 1999 New York.

Human Rights and Global Diversity: Human Rights, Compatibility, and Diverse Cultures, Simon Caney, 68, Taylor and Francis Group, 2007.

Peek, John M. "Buddhism, Human Rights and the Japanese State." Human Rights Quarterly 17, no. 3 (1995): 534. Accessed July 8, 2020. www.jstor.org/stable/762392.

Roth, Beth. “Right Speech Reconsidered - The Eightfold Path.” Tricycle, 29 Jan. 2020, tricycle.org/trikedaily/family-dharma-right-speech-reconsidered/.

Walton, Matthew J. “What Did the Buddha Mean by 'Right Speech'?” Free Speech Debate, 10 Feb. 2015, freespeechdebate.com/discuss/what-did-the-buddha-mean-by-right-speech/.

Early Modern Rationalism 🖉 edit

TThe late seventeenth century was a period of great philosophical advancement. Falling roughly at the close of the Enlightenment movement, the late 1900s and early 1700s saw an expansion in the European discourse on rights and liberties within political society. While rationalists during this time period generally did not deal with specific freedoms of the citizens in their writings, writers like Leibniz and Spinoza do reveal a tendency in the early-modern rational tradition to consider the benefits of citizens’ unrestrained expression. Sources do not indicate that these philosophers were thinking of free expression in terms of right or liberty, but their writings nevertheless reveal shades of support for the concept. Leibniz was a prolific writer who produced a plethora of work spanning a wealth of topics, but some of his most important work relating to freedom and liberty occurred in the field of political philosophy. In his “Reflections on the Common Concept of Justice,” he explains his thoughts on justice within political society and the transfer of right between citizen and state. In response to Hobbes’ argument in Leviathan, Leibniz explains that he thinks it impossible for an individual to transfer all of their freedom unto a sovereign in exchange for membership and security within a state. “In the end,” he writes, “in spite of what Hobbes says, each one has retained his right and his liberty regardless of the transfer to the state, and this transfer will be provisional and limited, that is, it will take place to the degree that we believe our safety is involved” (Leibniz, 573). This does not deal specifically with the right to liberty of expression, but it certainly implies that there are certain freedoms that the citizen retains within the context of wider society. Coupled with his definition of justice as “a constant will to act in such a way that no person has reason to complain of us,” it is not unreasonable to conclude that freedom of expression could be included in the set of liberties that Leibniz believes are not transferred to the sovereign in political society. (Leibniz, 566).

Of course, Leibniz never directly argues in favor of the protection of the right to freedom of expression, so it is unclear whether he viewed it as an inalienable, natural right. The idea that certain forms of expression could potentially give a person “reason to complain” of another was certainly familiar to early-modern Europeans; defamation and libel laws had existed in England since the reign of Edward I (Statutes of the Realm). This means that Leibniz would have understood how certain forms of expression could be harmful to political society, and it is possible that he would have viewed certain forms of expression as unjust and therefore unprotected by natural right. Ultimately, Leibniz would have based his views on freedom of expression in his classification of the right itself. If he thought of it as an intrinsic natural right which citizens were incapable of giving up, then he likely would have viewed state restrictions on speech or demonstration as inherently impermissible. Unfortunately, Leibniz does not address specific rights, such as that to freedom of expression, within his discourse.

Spinoza, on the other hand, deals somewhat more specifically with the freedom of expression, though he also refrains from advocating for it outright. Spinoza’s support for free expression within society stems from his belief that the state can never truly force belief upon its subjects. He does not address freedom of thought and expression; he sees them as inevitable. In his Theological-Political Treatise, h e discusses the rights and liberties that the individual surrenders to the state when he or she enters into political society under the sovereign. When he considers the state’s ability to impose belief upon its citizens, he concludes that “the individual justly cedes the right of free action, though not of free reason and judgment; no one can act against the authorities without danger to the state, though his feelings and judgment may be at variance therewith; he may even speak against them, provided that he does so from rational conviction” (Spinoza, 195). Elsewhere in the Treatise, he writes that:

“I have thus shown:—I.That it is impossible to deprive men of the liberty of saying what they think. II.That such liberty can be conceded to every man without injury to the rights and authority of the sovereign power, and that every man may retain it without injury to such rights, provided that he does not presume upon it to the extent of introducing any new rights into the state, or acting in any way contrary to the existing laws.” (Spinoza, 199)

Like Leibniz, Spinoza does not take issue with an individual’s freedom of belief, nor does he see any reason that a citizen’s right to express themself should be restricted. It is important to note that both thinkers limit the citizen’s liberty, whether it relates to speech or not, to action that does not break any of the sovereign’s laws. Neither philosopher believed that a sovereign’s word was always morally just, but both nevertheless took issue with a citizen’s blatant violation of the law.

References:

Britain., Great. “The Statutes of the Realm : Printed by Command of His Majesty King George the Third, in Pursuance of an Address of the House of Commons of Great Britain. From V.1.” HathiTrust, babel.hathitrust.org/cgi/pt?id=pst.000017915496.

Johns, Christopher. “The Grounds of Right and Obligation in Leibniz and Hobbes.” The Review of Metaphysics, vol. 62, no. 3, 2009, pp. 551–574. JSTOR, www.jstor.org/stable/40387825. Accessed 30 July 2020.

“Reflections on the Common Concept of Justice (1702[?]).” Philosophical Papers and Letters, by Gottfried Wilhelm Leibniz and Leroy E. Loemker, Kluwer Academic, 1989. Spinoza, Benedictus de, and R. H. M. Elwes. The Chief Works of Benedict De Spinoza. G. Bell, 1891, oll resources.s3.amazonaws.com/titles/1710/Spinoza_1321.01_EBk_v6.0.pdf.

Feminist Thought 🖉 edit

Feminist theory, at times, seems to be at odds with the principles of free expression. It is commonly acknowledged that limitations on freedom of speech are less strictly-enforced in academic settings because the freedom of exchanging ideas, without consequence or censorship, is essential to the marketplace of ideas (Cornwell, 107, 1998). The marketplace of idea, essentially, centers on the belief that some opinions will rise in merit, while lesser ideas will sink and be disqualified (Cornwell, 107, 1998). Feminist theory recognizes that there may be underlying power dynamics within a classroom setting that ultimately threaten the viability of the marketplace of ideas, namely that hate speech could perpetuate “the inequalities and injustices that feminist pedagogy attempts to overcome” (Cornwell, 107, 1998). To understand the study of free expression within feminist theory, one must understand that feminist scholars do not examine freedom of expression as an individual right, but instead “the social relations between individuals” (Cornwell, 110, 1998). Cornwell recognizes that speech, within a social relationship, creates “differentiations in power and the dominant becomes the standard by which the ‘other’ is defined” (110, 1998). Ideas about free speech, including the marketplace of ideas, were created and perpetuated by white males for over two hundred years, according to feminist theories, and, as such, so have the understanding of hate speech (Cornwell, 111, 1998). Cornwell, as such, recommends that academic settings, instead of using the marketplace of ideas theory to regulate freedom of speech, use the “ethic of care” principle (Cornwell, 113, 1998). The ethic of care essentially means an individual’s shift “towards an orientation of social life constituted by the relationship between individuals lays the groundwork for reorienting speech rights, so that they are not simply extensions of individual rights” (Cornwell, 113, 1998). Instead of viewing freedom of speech as an individual right, it “should be viewed as part of the social relation between individuals and, consequently, attention should be paid to the social implications of that relationship” (Cornwell, 113, 1998). Within the context of the ethic of care, hate speech is communication that creates a meaning of bigotry and discrimination—it changes the social relationship between two individuals to cause harm (Cornwell 113, 1998). Since speech creates meaning in a relationship that can define the two individuals, a relationship with hate speech “constructs a ‘truth’ about the victims of hate speech that invariably impacts on their liberty” (Cornwell, 113, 1998). Thus, within feminist theory, hate speech ought to be combated within the academic setting through “revealing and engaging with power, and community building in the classroom” (Cornwell, 111, 1998).

References:

Cornwell, Nancy C. “Rethinking Free Expression in the Feminist Classroom: The Problem of Hate Speech.” Feminist Teacher 12, no. 2 (1998): 107–18. http://www.jstor.org/stable/40545815.

Hobbesian Thought 🖉 edit

Hobbes never advocates for a right to free expression. Rather, he argues that a commonwealth should censor opinions and publications promoting doctrine that undermines its wellbeing. He states that it is “annexed to the Soveraignty, to be Judge of what Opinions and Doctrines are averse, and what conducing to Peace; and consequently, on what occasions, how farre, and what, men are to be trusted withall, in speaking to Multitudes of people; and who shall examine the Doctrines of all bookes before they be published. For the Actions of men proceed from their Opinions; and in the wel governing of Opinions, consisteth the well governing of mens Actions, in order to their Peace, and Concord” (202). Despite Hobbes’ often totalitarian views, Hobbes advocates at least some liberty of expression, religion, and association. Hobbes only supported restrictions on liberty when it would have a tangible benefit to the state. In Elements of Law, he argues “that there be no restraint of natural liberty, but what is necessary for the good of the commonwealth” (1640, 9-4). In Behemoth, he even argues that “suppression of doctrines does but unite and exasperate, that is, increase both the malice and power of them that have already believed them” (Hobbes 1681). Although Hobbes’ preference is liberty, he does not seem to have a particularly high standard for classifying ideas as seditious. He considered Christian views that violating conscience is a sin and that sanctity and faith are achieved through relations with the supernatural, not reason, to be seditious (Curley 1). One can see how these views would hurt a state - the idea about violating conscience could promote disobedience. Still, these views are nowhere near problematic to meet the standards for censorship employed by most modern Western governments.

References:

Leviathan: https://www.fulltextarchive.com/pdfs/Leviathan.pdf Curley: https://sites01.lsu.edu/faculty/voegelin/wp-content/uploads/sites/80/2015/09/Edwin-Curley.pdf

Elements of Law: http://library.um.edu.mo/ebooks/b13602317.pdf

Behemoth: https://oll.libertyfund.org/titles/hobbes-the-english-works-vol-vi-dialogue-behemoth-rhetoric

Lockean Thought/English Empiricism 🖉 edit

Locke made little mention of free expression. However, one can draw inferences based on his views on religion and association, especially since there is substantial overlap between expression and association and religion. One can infer that, if Locke advocates for certain doctrinal limitations on churches and other associations, he would support limits on the expression of those doctrines. After all, forming associations that exist to further certain viewpoints is a form of expression (take the concept of “expressive association” in US jurisprudence). In A Letter Concerning Toleration, Locke establishes some respect for freedom of opinion, writing that if an opinion does “not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated” (36). Scholars disagree strongly over the extent to which speech would be regulated in a Lockean society (Daniel 2013, 1).

References:

A Letter Concerning Toleration: https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf

Daniel: https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1154&context=student_scholarship

Marxism 🖉 edit

Free expression is not a central tenet of Marxism. However, Marx’s early writings display a distaste for censorship. In 1842 he wrote that “the real, radical cure for the censorship would be its abolition” (Marx 1842). Though he strays from this topic in his later writing, he never repudiated his earlier opinions (Heinze 2018). Heinze argues that the idea that Marxism is inherently anti-free-speech is a misconception (regardless of how some specific Marxist regimes have operated). Marx rejected some rights - property rights - because they served the interests of the wealthy and powerful. But free speech is different because it does not serve an underlying interest that Marx opposed.

References:

Marx 1842: https://www.marxists.org/archive/marx/works/1842/02/10.htm

Heinze 2018: http://humanityjournal.org/blog/karl-marxs-theory-of-free-speech-part-1/#_ftn5

Millian Utilitarianism 🖉 edit

John Stuart Mill elaborates on utilitarian ideas of using free speech in furtherance of better governance; he argued that all opinions should be allowed because public discourse will separate good ideas from bad ones (Niesen 7). This is known as the “marketplace of ideas” argument. Under this theory, even false beliefs have their place (Mill believed opinions could have truth or falsity), because they can lead public discourse to discover truth (Niesen 9). Mill makes little distinction between opinion and fact because they complement each other (Niesen 10). In Law of Libel, Mill argues that finding true ideas requires an understanding of facts (Niesen 12). Mill would not guarantee the right to voice untrue facts (Niesen 12). There is scholarly debate as to whether there is room in Mill’s thought for governments to limit the expression of true facts in certain situations. Niesen cites a thought experiment put forth by Jonathan Riley, where someone publishes pornographic material of an ex-lover, an act which conflicts with the other party’s right to self-determination. Niesen argues that this could plausibly be considered an expression of fact whose purpose is not to aid in the formation of public opinion, and a Millian government may ban this form of speech.

US courts, including the Supreme Court, have invoked the marketplace of ideas theory hundreds of times over the past century (Schultz & Hudson 2017). For a recent example, in 2017, the Supreme Court invalidated a federal law banning offensive terms in trademarks, drawing on the marketplace of ideas theory in its unanimous opinion (Hudson 2017).

References:

Niesen, P. ‘Speech, truth and liberty: Bentham to John Stuart Mill.’ Journal of Bentham Studies, 2019, 18(1), pp. 1–19. DOI: https://doi. org/10.14324/111.2045-757X.046.

Schultz and Hudson: https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas Hudson: https://mtsu.edu/first-amendment/article/1528/matal-v-tam

Physiocrats 🖉 edit

Although Physiocrats stress the importance of economic freedom, critics place them within the realm of enlightened despotism. Tocqueville classifies the physiocrats as having “little liking for political freedom” (Cavanaugh 38). Physiocrats believed that a central authority figure was needed to create prosperity by following the principles of natural law (Cavanaugh 42). Most physiocrats’ research examines their economic stances, in fact, it overwhelmingly focuses on their economic theories. However, using their economic perspectives, one can extrapolate their beliefs on general rights and liberties. The physiocrats fundamentally believe in laissez faire—that the economy was over-regulated and taxation was overwhelmingly indirect. They believed that the government should take a hands-off economic approach and let the market regulate itself. This can be expanded into their views of personal rights and liberties. The physiocrats believed in the natural, inherent rights of man and believe these rights should not be regulated except in the instance where man infringes on the rights of others (Higgs 1897). The physiocrats do not believe that men do not compromise on rights in any instance, including when they enter into a social contract (Higgs 1897). Thus, even the state must be subservient to the rights of man. This philosophy is based on the idea of society collectively benefitting or losing based on the actions of individuals (Higgs 1897). Men can maintain all of their rights, with the understanding that an infringement on another individual’s rights would be collectively bad for society in which they both reside (Higgs 1897).

References:

Henry Higgs, The Physiocrats (1897)

Cavanaugh, Gerald J. “Turgot: The Rejection of Enlightened Despotism.” French Historical Studies 6, no. 1 (1969): 31–58. https://doi.org/10.2307/286243.

Reformation Christianity 🖉 edit

The Protestant Reformation of the sixteenth and seventeenth centuries sparked new discussions about mankind’s freedom of the conscience, belief, and to some extent, expression. Reformers from all over Europe produced writings on these freedoms, but they generally thought about these rights as they related to questions of theology. As a result, Reformation discourse focused more on a Christian’s freedom of conscience than on the citizen’s right to express their beliefs. The right to freedom of expression was explored, but much less broadly. English philosophers Thomas More and Thomas Wilson are two of the only Reformation-era thinkers to directly address the right, but their work influenced England’s political development regarding free speech over the next several centuries. Wilson’s support for the Reformation guided his views on the necessity of free expression, while More’s views were less religiously-motivated. More, who would eventually be martyred for his refusal to renounce Catholicism, made his most significant contribution to the English discourse on the right to free expression before the Anglican Reformation even began. In 1523, eleven years before English King Henry VIII announced a split from the Catholic Church, his newly-appointed Speaker of the House of Commons made a petition for freedom of speech within Parliament. The Speaker was none other than Sir Thomas More, who would later oppose Henry’s Anglican Reformation at the cost of his own life. He argued that Parliament could not be expected to form effective policy if its members were not allowed to speak honestly, saying that “it may therefore like your most abundant Grace, our most benign and godly King, to give to all your Commons here assembled your most gracious licence and pardon, freely, without doubt of your dreadful displeasure, every man to discharge his conscience, and boldly in everything incident among us to declare his advice, and whatsoever happen any man to say” (More, 1523). More’s insistence on the value of free speech within a legislative body is far removed from advancing the citizen’s right to freedom of expression, but it reveals that English Reformation-era thinkers were beginning to reconsider the permissibility of magisterial censorship as early as the 1520s. While More was ultimately executed for remaining loyal to the Catholic Church during the Anglican Reformation, his conviction that one ought to be able to speak their mind without fear of legal retribution endured.

About twenty years after More’s speech, Thomas Wilson made a similar statement about freedom of expression in his 1553 work, The Arte of Rhetorique. Wilson was an English writer whose Protestant views led Catholic Queen Mary I of England to summon him out of his mid-sixteenth century exile in Italy to stand trial for heresy, and his Protestant tendencies seem to have guided his thoughts on freedom and liberty. In an introduction to The Arte of Rhetorique, George Herbert Mair asserts that “there is no mistaking [Wilson’s] zeal for the Reformation. It shines through everything he wrote, and the reader of the Logike and the [Rhetorique] will have no cause to wonder at the papal persecution of his works” (Mair, 1908). Perhaps this avid support for the Reformation movement influenced his thoughts on freedom, not only of the conscience but also of speech itself. A passage from The Arte states that “Freeness of speech is when we speak boldly and without fear, even to the proudest of them, whatsoever we please or have list to speak. Diogenes, herein did excell..this world wants such as he was” (Wilson, 1553). Like More, Wilson understood the value of free speech. Though he does not speak in this passage of a citizen’s right to freedom of expression, he was at least aware of the potential benefits that this liberty could have within political society. In fact, according to a 1981 article in The Sixteenth Century Journal, Wilson advanced the discourse on freedom of speech by “claiming that freedom of speech is a generally acknowledged duty to be exercised by anyone, not restricted to parliamentary debate” (Parkin-Speer, “Freedom of Speech in Sixteenth Century English Rhetorics”).

Both More and Wilson made important contributions to the Reformation-era discourse on freedom of expression, but neither would live to see England’s official legislation of the right to freedom of speech within Parliamentary debate. This only occurred after the Glorious Revolution, in which William, Prince of Orange and newly crowned King of England, signed the English Bill of Rights in 1689. The Bill reflected England’s newfound stability within the European religious community by declaring the country a “Protestant Kingdom” and forbidding any Catholic from taking the throne or marrying into the royal family (English Bill of Rights). It also became the first early-modern document to legislate freedom of expression when its text guaranteed “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” (English Bill of Rights). The document went into effect near the end of the Anglican Reformation movement, over a century after Wilson’s death, so it is unclear to what extent he or More influenced its creation. While The Arte of Rhetorique w as known in academic circles, its call for freedom of speech was not fully answered by the Bill, which only guaranteed that right within Parliamentary debate. The Bill’s text more closely resembles More’s 1523 speech, which specifically refers to freedom of speech within Parliamentary debate. Scholarship has yet to establish a direct link between the Bill and either of the two documents, but it is nevertheless important to note the importance of both writers’ work in advancing English discourse on the right to freedom of expression.

REFERENCES:

Avalon Project - English Bill of Rights 1689, avalon.law.yale.edu/17th_century/england.asp.

More, Thomas. “Thomas More Petition for Free Speech, 1523.” The Center for Thomas More Studies, www.thomasmorestudies.org/docs/Thomas%20More%20Petition%20for%20Free%20Sp eech.pdf.

Parkin-Speer, Diane. “Freedom of Speech in Sixteenth Century English Rhetorics.” The Sixteenth Century Journal, vol. 12, no. 3, 1981, pp. 65–72. JSTOR.

Wilson, Thomas. “The Arte of Rhetorique, with ‘Introduction.’” Edited by George Herbert Mair, The Art of Rhetoric, Renascence Editions, www.luminarium.org/renascence-editions/arte/arte.htm.

Rousseau's Thought 🖉 edit

In his First Discourse, Rousseau elaborates on the problems of moral inequality that he believes have arisen out of unrestricted expression by elites in art, science, and philosophy, determining that “the pernicious inequality created among men by the distinction of talents and the debasement of virtues” gives rise to humanity’s moral decay. Elite control over what information is deemed important in society “corrupts our judgment” and teaches children “everything but their duty” to their families and communities (The Essential Rousseau 1974, p. 222). At the end of the Discourse, Rousseau encourages readers to deny elite priorities in favor of an emphasis on local, communal, and individual needs: “Let us not pursue a reputation which would escape us and which, in the present state of things, would never repay us for what it had cost us, even if we were all qualified to obtain it. Why should we seek our happiness in the opinion of our fellow men if we can find it in ourselves? Let us leave to others the task of instructing peoples in their duties, and limit ourselves to fulfilling our own; if we have that, we have all the knowledge we need” (p. 227).

Similarly, in The Social Contract, Rousseau offers a political system to address part of this problem, outlining that the institution of his ideal body politic depends upon the “complete surrender of each associate, with all his rights, to the political community” and the allocation of each person “and all his power...under the supreme control of the general will” (p. 17). While Rousseau posits that ensures equal political conditions for all and disincentivizes decisions that do not benefit the whole community, such a system also includes harsh restrictions on individual freedom of expression as it is conventionally understood today.

While Rousseau endorses open debate and dissent during the lawmaking process, censorship plays a prominent role in the enforcement of newly-created laws to more easily keep subjects content and make legislation better reflect the general will: “although the law does not regulate morals, it is legislation that gives birth to them…censorship can be useful for preserving morals, but never for restoring them” (p. 105). To Rousseau, the majoritarian nature of the sovereign “always tends toward the public good” and leaves little opportunity for dissent in the political process after laws have been passed (p. 26). The role of the “government” in Rousseau’s thought also imposes coercive restrictions on individual expression. In carrying out its responsibilities as an executive force, Rousseau believes that the government ought to compel individuals to abide by the decisions of the general will and suppress those who speak out against it–a responsibility Rousseau recognizes as vital to the continual existence of the sovereign (p. 52).

Censorship is also a prominent element of the responsibilities of Rousseau’s lawgiver, the societal first mover who ought to “concern himself” with the “morals, customs...and public opinion” of a people in secret to maintain social order (p. 47). While debate and dissent concerning religious speculation ought to be tolerated, the moral authority outlined by the lawgiver must go unquestioned, as “open dissent from these opinions can be understood as at best a declaration of independence from the community and at worst a declaration of war against it” (Kelly 1997, 1241).

Suppression of the minority opinion in Rousseauian society severely encroaches upon individual autonomy and the incentivization of censorship immediately following the legislative process further suppresses the ability for individual thought to exist outside of what is deemed legitimate by the legislative assembly.

References:

Rousseau, Jean-Jacques, and Lowell. Bair. The Essential Rousseau. New York: New American Library, 1983.

Kelly, Christopher. “Rousseau and the Case for (and Against) Censorship.” The Journal of politics 59, no. 4 (1997): 1232–1251.

Early Sociology 🖉 edit

While sociology has been studied for many years, with different academics commenting on classic works from many different people, one prominent figure is Stephen Lukes, a political and social theoriest at NYU, who commented on Émile Durkheim’s work. Lukes views Durkheim as someone whose thoughts on sociology are essential to our understanding of it; he explains that “he’s hard to escape because there are some profound insights which entered into the very bloodstream of sociology thinking.” Without Durkheim, it’s possible we may have some unanswered questions about things in the realm of sociology. In an interview with Nigel Warburton, he explains several concepts that Durkheim has worked through. He explains how in Durkheim’s book he defines a “social fact” as something “external to individuals, meaning any individuals taken singly, they constrain us, they are independent of us, and they exist, sometimes this is called the theory of emergence” (Social Science Bites). While Lukes does quote things directly from Durkheim, he also tries to explain some things that Durkheim has said in his own words, or seems to put is own spin on what he thinks they mean. When referencing Durkheim’s book on suicide, he explains that this work “elaborates a theory in which there are, what he calls, ‘suicidogeic’ currents, [and] in the end came down to two ideas really: the extend to which people were integrated into larger social unities, communities, or so on, and the extent to which they were regulated by norms” (Social Science Bites). Lukes brings up Durkheim’s concept of “organic solidarity,” but added on that while he sees this as a problem, Durkheim didn’t provide a solution to this.

Lukes explains that Durkheim's book on religion is a “masterpiece” and that his book was a “big, very ambitious thing.” He generalizes this book as being “an attempt to develop a general theory of religion, what religion is, what its elements are, by studying the tribal religions that had been investigated and written about by missionaries and travellers at that time” (Social Science Bites). In the 1970s, Lukes wrote a book about Durkheim, “Emilie Durkheim: His Life and Eork. A Historical and Critical Study.” He explains that Durkheim was obsessed with “the question of social determination, and the ways in which our thoughts and behavior are shaped by, and reflect our social conditions and social life” (Social Science Bites). Durkheim’s thinking inspired Lukes’ “radical” view of power, and he believes it can be examined in “three dimensions - the overt, the covert, and the power to shape desires and beliefs” (Social Science Bites).

Bites, Social Science. “Steven Lukes on Durkheim.” Social Science Space. Last modified May 29, 2020. Accessed July 31, 2024. https://www.socialsciencespace.com/2015/05/steven-lukes-on-durkheim/.

Weberian Thought 🖉 edit

Regarded as one of the founders of the field of sociology, the influence of Max Weber (1864-1920) on contemporary thinking about politics and society has been immense. Throughout an extensive body of work, perhaps the main theme of Weber’s thought is the rapid political and economic evolution that European society was undergoing in his lifetime, and the question of how freedom can still exist in this increasingly rationalized and bureaucratized new order.

When describing his fears for the survival of freedom in the modern world, Weber refers to “individually differentiated conduct” and “individualistic freedom” being curtailed by the process of rationalization (Levine 1981, 16). Since expressing oneself and one’s sentiments is what individualized (i.e., unique to and illustrative of one’s personal qualities) conduct fundamentally consists of, Weber’s concern for individual autonomy can be translated as a concern for freedom of expression. However, one significant difference between Weber and other philosophers of freedom, from John Locke to John Rawls, is that Weber does not think of freedom in terms of rights that one is entitled to. For Weber, freedom of expression is akin to the agency to express ideas and bring them to fruition: it is less a right everyone has simply by virtue of being born, and more a quest to fulfill.

Not only that, but Weber’s ultimate focus is on the state rather than the individual: while his goal is the realization of individual expression, he regards this goal as something to be achieved through developments on a national or societal level, instead of on a personal one. Politics, for him, is “a uniquely human activity, one with the potential both to create and to manifest the responsibility and dignity of individuals in an increasingly secularized world” (Warren 1988, 31).

In his 1919 address “Politics as a Vocation,” Weber begins his exploration of how politics functions in the modern day with his famous formulation that a state is defined by its monopoly on the legitimate use of force: “the modern state is a compulsory association which organizes domination” (Weber 1919, 4). This view certainly lacks the idealism of theories grounded in the idea that the state is under a social contract with its people to uphold their rights. Nevertheless, what is often missed is that Weber’s theory requires not just for the state to be more powerful than any competitors who might also seek to exert force, but for it to exercise power in a way that is (or at least widely recognized as) normatively legitimate.

This discussion of state legitimacy would, it should be noted, have felt particularly prescient to audiences in Weber’s native Germany. Weber delivered his address only a year after the end of World War I, when the monarchy of Kaiser Wilhelm II had been broadly discredited by the devastating loss of the war, and the German people had found themselves living in a vaguely democratic republic that many on both the right and left felt had no grounds to claim their allegiance. In “Politics as a Vocation,” Weber presents three possible sources of legitimate authority: one based on tradition, one on a system of rules or laws, and one on a leader’s “extraordinary and personal gift of grace (charisma)” (Weber 1919, 2). It is this last one that is of most interest concerning how freedom of expression fits into Weber’s views. According to Weber, charismatic legitimacy consists of “absolutely personal devotion and personal confidence in revelation, heroism, or other qualities of individual leadership.” Historically, it has been displayed by “the elected war lord, the plebiscitarian ruler, the great demagogue, or the political party leader” (Weber 1919, 2).

Charismatic legitimacy is, therefore, most relevant to Weber’s vision of the fulfillment of freedom of expression through the state – one where both leaders and those under them interact with politics as a vocation, or (per his term) a calling, a word with distinctly religious connotations. Weber further defines a calling by distinguishing between ‘occasional’ and vocational political engagement: “we are all ‘occasional’ politicians when we cast our ballot or consummate a similar expression of intention, such as applauding or protesting in a ‘political’ meeting, or delivering a ‘political’ speech, etc. The whole relation of many people to politics is restricted to this” (Weber 1919, 5). Political expression requires politicians or other politically engaged people to approach politics as a vocation – as a spiritual mission that one lives to fulfill.

However, to Weber, charismatic leadership alone is insufficient for the popular will to be expressed. Although Weber is cognizant of the problems of bureaucracy, he recognizes that a charismatic leader ultimately needs an effective state apparatus to carry out their promises. To him, “the bureaucratic state order is especially important; in its most rational development, it is precisely characteristic of the modern state” (Weber 1919, 4). The seeming contradiction can potentially be resolved if one considers that throughout his works Weber invokes two distinct types of freedom, each of which interact differently with the inescapable process of the rationalization and bureaucratization of society. One is ‘situational’ freedom, referring to external constraints on one’s movements or actions; the other is freedom in the much more expansive sense of autonomy, or “the condition in which individual actors choose their own ends of action” (Levine 1981, 16). While it is easy to imagine how the rise of factory jobs and big government would restrict situational freedom, Weber believes that the modern state’s effect on personal autonomy is actually positive. This conception of autonomy can be more broadly defined as the ability to be guided by one’s own ideas; Weber calls it “a series of ultimate decisions through which the soul…chooses its own fate” (Levine 1981, 21). It can thus be said that to have autonomy, by Weber’s definition, is to have freedom of expression.

In “Politics as a Vocation,” Weber identifies a state bureaucracy as ultimately critical for the state to enable citizens’ political aspirations to come to fruition – for citizens to have autonomy, in the sense of choosing their own fates. Weber expounds on this idea in other writings on bureaucracy, as in his statements that bureaucratic organization “has usually come into power on the basis of a leveling of economic and social differences,” and that it “inevitably accompanies mass democracy” (Gerth and Mills 1946, 224). This is because mass democracy necessitates “the characteristic principle of bureaucracy: the abstract regularity of the execution of authority” (Gerth and Mills 1946, 224). Weber further elaborates on this with phrases like “‘equality before the law’ in the personal and functional sense,” the “horror of ‘privilege,’” and “the principled rejection of doing business ‘from case to case’” (Gerth and Mills 1946, 224). In today’s terms, this concept might be summarized as the rule of law: having institutions in place to ensure the state effectively and consistently carries out its functions. Weber certainly seems right that a bureaucracy in this sense would be a precondition for popular expression. As an example, in “Politics as a Vocation,” he approvingly cites the 1883 Civil Service Reform Act as creating a professional bureaucracy in the United States, replacing the “spoils” system where successive administrations distributed offices based on political allegiance (Weber 1919, 7).

Nonetheless, Weber’s account of freedom of expression, where the effective operation of the state serves as the avenue for expression of public sentiments, still seems lacking in other ways. Under Weber’s conception of the state, the people’s voice is only expressed indirectly: “the demos itself, in the sense of an inarticulate mass, never 'governs' larger associations; rather, it is governed, and its existence only changes the way in which the executive leaders are selected and the measure of influence which the demos, or better, which social circles from its midst are able to exert upon the content and the direction of administrative activities by supplementing what is called 'public opinion'” (Gerth and Mills 1946, 225).

Then again, this may not have been as much of a concern for Weber. For Weber, political expression entails a progression towards political maturity; the realization of the people’s aspirations is more of a responsibility on their part than a right. Indeed, throughout his body of work, Weber displays a deep pessimism about the political capacities of the German people. According to him (as he wrote in the 1890s), if there is any hope, it lies in the economically ascendant but politically unassertive bourgeoisie: the decaying aristocracy can no longer be trusted with power, while the working classes are led by those who “have no organic connection with the class they claim to represent” and whose “revolutionary posture in fact acts against the further advancement of the working class towards political responsibility” (Giddens 1972, 17).

Giddens goes on to explain Weber’s viewpoint thus: “Weber saw as the principal question affecting the future of Germany [as] that of whether the economically prosperous bourgeoisie could develop a political consciousness adequate enough to undertake the leadership of the nation. … there could be no question of refounding German liberalism upon a 'natural law' theory of democracy. He rejected, moreover, the classical conception of 'direct' democracy, in which the mass of the population participate in decision-making.” Ultimately, “in the modern state, leadership must be the prerogative of a minority: this is an inescapable characteristic of modern times. Any idea 'that some form of democracy’ can destroy the ‘domination of men over other men’ is ‘utopian’” (Giddens 1972, 18).

Perhaps an even bigger problem with Weber’s freedom of expression is that he necessarily views the expression of the popular (which is to say, majority) will as entailing the expression of the individual will. In his address, he never considers situations where they might not, in fact, be one and the same – where an individual might dissent from the majority. Weber’s inattention to the protection of minority views is a consequence of his lack of discussion of individual rights, or indeed of any other limits on government power (like independent legislative and judicial branches, or even regular competitive elections). He may have died before he could see them, but the 20th century would provide numerous examples of how the unfettered state is anything but conducive to freedom, by any definition of the term. While the aim of “Politics as a Vocation” may just be to explain how the state functions and acquires legitimacy, its failure to consider any substantial limits on what the bureaucratic state can do is ultimately a second reason why it is lacking as an account of freedom of expression.

In his book, Mommsen describes Weber’s view thus: “Max Weber considered the natural-law justification of democracy and the liberal constitutional state to be outmoded and an insufficient basis for a modern theory of government. The ‘rights of mankind’ were… ‘extremely rationalized fanaticisms.’” Weber acknowledged that the principle of human rights had done much good, but felt its value was limited in the modern reality: “[Weber] believed that he believed that the axioms of natural law were no longer providing clear directions for a just social order under the conditions of higher capitalism. He also felt that ‘the old individualist principles of inalienable human rights’ had lost much of their power of persuasion under the conditions of modern industrial society. He did not hesitate, on occasion, to set them aside” (Mommsen 1984, 392-393).

Another review describes these shortcomings in Weber’s vision of freedom of expression as less flaws in Weber’s reasoning, and more “symptoms of real challenges for democratic theory” (Warren 1988, 31). Weber may very well have been correct in his preoccupation with the inadequacies of democracy in modern society. Nonetheless, as Warren puts it, “these conflicts would have been less had Weber elaborated his liberal commitments in substantially democratic directions rather than the elitist direction he in fact chose” (Warren 1988, 32). As the world learned from bitter experience, the problems of democracy can only be addressed by expanding democratic participation and rights, to as wide a range of people as possible, and not by restricting them.

There is much in Weber’s political thought that is insightful, and even prescient. In his warnings of the dangers that a hyper-rationalized society posed to freedom of expression, Weber stands out from the Enlightenment thinkers who came before him, for whom rationalization must invariably lead to freedom by liberating humanity from the tyranny of dogma and superstition (Levine 1981, 5). That being said, even if it may have seemed reasonable at the time and much of the criticisms of it come with the benefit of hindsight, his account of freedom of expression is incomplete, in that it only envisions an indirect political expression for the vast majority of citizens, and neglects to recognize the need to protect dissenting voices from the state through robust limits on state power.

References:

Gerth, Hans H., and C. Wright Mills. From Max Weber: Essays in Sociology. New York: Oxford University Press, 1946.

Giddens, Anthony. Politics and Sociology in the Thought of Max Weber. London: Macmillan Press, Ltd., 1972.

Levine, Donald. “Rationality and Freedom: Weber and Beyond.” Sociological Inquiry, 51, no. 1 (1981): 5-25, https://claremont.illiad.oclc.org/illiad/pdf/668358.pdf

Mommsen, Wolfgang. Max Weber and German Politics, 1890-1920. Translated by Michael Steinberg. Chicago: University of Chicago Press, 1984.

Warren, Mark. “Max Weber’s Liberalism for a Nietzschean World.” The American Political Science Review, 82, no. 1 (1988): 31-50, https://www-jstor-org.ccl.idm.oclc.org/stable/pdf/1958057.pdf?refreqid=excelsior%3Ab0b313bfe50f0c00080b3af5edb29a18&ab_segments=&origin=&initiator=&acceptTC=1

Weber, Max. 1919. “Politics as a Vocation.” In From Max Weber: Essays in Sociology, edited and translated by Hans H. Gerth and C. Wright Mills, 77-128. New York: Oxford University Press, 1946, http://fs2.american.edu/dfagel/www/class%20readings/weber/politicsasavocation.pdf

Kantianism 🖉 edit

The right to free expression is a notion central to the philosophy of Immanuel Kant. In his eyes, the unrestricted, public articulation of one's ideas is of vital importance: it is a prerequisite for humanity to realize its social and political ends. At the outset, we must be careful not to assume that Kant shares in our modern, liberal conception of this right. We must also refrain from implying a unified interpretation of this freedom among nations where it is constitutionally codified. This would be empirically false: the form and scope of free expression varies widely across liberal democracies. However, a general account might be gleaned by examining the definitions given by well-established international human rights organizations. Article 19 of the United Nation's Universal Declaration of Human Rights states: "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" (UDHR, 1946). Generally put, freedom of expression is the right to publicly voice one's opinions, especially critical ones, without state interference. There are several exceptions to this principle, including public expression that incites violence, threatens national security, promotes indecency, is libelous, or constitutes hate speech. These restrictions arise from a practical tension between the necessity of free expression and the dangers it poses to society and the state. Kant's view on freedom of expression is no exception. His arguments balance the rational need for guaranteed free expression with our duty to respect the will of civil authorities.

Kant's treatment of the freedom of expression is inextricably linked to the project of the European Enlightenment. In his essay "An Answer to the Question: What is Enlightenment?," Kant describes the titular epoch, defining it by its motto of "Sapere Aude! Have the courage to use your own understanding” (Kant 1784, 1). The era of Enlightenment constituted an awakening from Europe’s long-held state of "immaturity," in which institutional dogmatism monopolized public thought (Kant 1784, 1). Individuals had historically put their faith in public institutions and authorities, whether political, religious, medical, academic, or otherwise, to shape their beliefs and way of life (Kant 1784, 1). Enlightenment was the end of such dependency; it was the process of learning to use one's own reason or to think for oneself. To Kant, this promulgation of critical thinking was necessary for humanity's social and political progress; without it, humankind threatened to become ideologically stagnant. Kant claims that the sole condition for this awakening is the freedom of expression. In his own words: "nothing is required for this enlightenment, however, except freedom; and the freedom in question is the least harmful of all, namely, the freedom to use reason publicly in all matters" (Kant 1784, 2). Overcoming blind dogmatism demanded that people voice their ideas without legal restriction (Kant 1784, 2). Without this protection, the light of reason could neither spread nor become practically meaningful, as critical thinking only benefits society if it can be publicly communicated. This view constitutes Kant's general conception of freedom of expression, the right to express one's opinion publicly.

However, Kant distinguishes two forms of expression to address the tension between public criticism and civil obedience. Kant is a staunch defender of public reason, but he defines this concept narrowly. Public reason is the "use that anyone as a scholar makes of reason before the entire literate world" (Kant 1784, 2). This contrasts with the "private use of reason," by which Kant means acts of intellectual dissent within a civic bureaucracy, a form of expression he forbids (Kant 1784, 2). For instance, police officers are obligated to enforce laws even if they agree with them, with the only alternative being resignation (Kant 1784, 3). They may criticize the legal system outside their post but must faithfully perform their roles when 'on the job.' Kant argues that for civic institutions to effectively achieve their intended ends (i.e., to preserve the commonwealth, protect rights, and promote collective happiness in accordance with personal freedom), they must not be obstructed by those appointed to operate them (Kant 1784, 3). Qua citizen, critique is healthy and necessary, but qua official, censure both practically obstructs and formally contradicts the very notion of a political appointment (Kant 1784, 3). We see here that freedom of expression has an inherent potential for conflict with public authority, one which Kant hopes to solve by differentiating public and private reason.

Kant takes this concern further by describing the ideal relationship of the sovereign to free expression. To him, a good ruler neither represses discourse nor caves to public opposition. Instead, they follow the policy: "argue as much as you like, but obey!" (Kant 1784, 2). Public reason allows citizens to voice criticisms of a regime, which is essential for a monarch to bring his rule in line with civil freedom and the public good (Kant 1784, 2). However, this does not justify recalcitrant resistance to the government. In his essay “Theory and Practice,” Kant argues that subjects should only exercise the "freedom of the pen… within the limits of esteem and love for the constitution," meaning their criticisms should proceed with respect for both the public good and the sovereign's authority in mind (Kant 1793, 302). In-kind, a ruler must listen to the voice of his subjects but never cede his own interpretation of justice to theirs (unless their appeals convince him) (Kant 1793, 302). The sovereign is a trustee and not a delegate of the people. Even when he errs, obstruction and rebellion are never justified, only the exercise of public reason.

The degree of overlap between Kantian and contemporary conceptions of freedom of expression is difficult to parse. Because Kant never specifically treats freedom of expression vis-a-vis speech, the press, peaceful assembly, petition, and association, we need to extrapolate from his larger argument to infer his views on the matter. Because he expresses no specific restrictions on the mode of expression, freedom of speech, peaceful assembly, press, association, and petition appear permissible as long as they are peaceful and lawful. But other forms of expression less universally accepted as a right, such as conscientious objection, are a more complicated matter. As we have seen, Kant suggests that if a civic worker's duties conflict with his ethical obligations, he must resign. But in the case of conscription, there is no such option: one serves or faces the penalty, creating a conflict between one's political and ethical obligations. Moreover, Kant does not directly discuss the typical restrictions of 'public reason,' when it constitutes a danger to individual safety or national security. Because our modern understanding of these rights is the product of two centuries of evolving political thought, it may be useless to judge precisely what Kant would say of them. But regardless, there is still something to be gained in this comparison. By examining Kant's discussion of "public reason," we can clarify the foundational motivations and conflicts that inform debates surrounding this freedom today: the right to free expression is essential for societal flourishing, yet this must be balanced with the social and political consequences it presents in its extreme forms.

References:

Kant, I., & Wood, A. (1996). On the common saying: That may be correct in theory, but it is of no use in practice (1793). In M. Gregor (Ed.), Practical Philosophy (The Cambridge Edition of the Works of Immanuel Kant, pp. 273-310). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511813306.011

Kant, I., & Wood, A. (1996). An answer to the question: What is enlightenment? (1784). In M. Gregor (Ed.), Practical Philosophy (The Cambridge Edition of the Works of Immanuel Kant, pp. 11-22). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511813306.005

United Nations. (1948). Universal Declaration of Human Rights.

What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right? 🖉 edit

The phrase “living constitutionalism” was first coined in Howard Lee McBain’s 1927 book The Living Constitution (Solum 1256, 2019). Although the theory was only beginning to form, the book provided the foundations of living constitutionalism that we know today: “The following passage illustrates McBain’s notion of a living constitution: ‘A word’, says Mr. Justice Holmes, ‘is the skin of a living thought.’ As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed. The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase” (Solum, 2019).

Ultimately, the fundamentals of living constitutionalism rely upon the laws of the Constitution being evolutionary, able to change over time, and adaptable to new circumstances and times without the difficult and time-consuming formal amendment process (Strauss, 2010). In a constantly changing world with advancements in technology, changes in international, diplomatic, and social relations, as well as economic evolution, the Constitution does need to be flexible to a certain degree (Strauss, 2010). However, the idea of a Constitution that constantly changes over time cannot entirely be; “The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that's the whole idea of having a constitution. Public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all? Even worse, a living Constitution is, surely, a manipulable Constitution.” (Strauss, 2010). Scholar James E. Fleming goes on to explain that: “Strauss describes common-law constitutional interpretation as an evolving process of developing precedent and tradition, coupled with judgments of fairness and good policy. So far, so good. But some of his formulations make it sound like judges engaged in this process make judgments of fairness and good policy as if they were simply making pragmatic judgments rooted in concern to develop sensible doctrine, rather than judgments about how best to elaborate the abstract moral and political principles to which the Constitution commits us – or judgments about how best to realize our aspirational principles. He acknowledges this point elsewhere in the book, e.g., where he speaks of common-law courts as relying on “general principles derived from precedents and on its judgments about good policy.” Likewise, he refers to “a living constitution that exists apart from the text and the original understandings – that exists in, for example, the principles that protect freedom of expression and those of Brown v. Board of Education.” In short, we should conceive the Constitution as a framework or scheme of abstract aspirational principles that we elaborate through common-law constitutional interpretation” (Fleming 1178, 2011).

Regarding specifically freedom of expression in the First Amendment, the principles of freedom of expression that we know today did not become established in law until over a century after the Constitutions ratification (Strauss 52, 2010). The views of the drafters of the First Amendment drafters is unclear according to the wording of the rights, and even further “There is, in fact, good evidence that the people responsible for adding the First Amendment to the Constitution would have been comfortable with forms of suppression that would be anathema today… The central features of First Amendment law were hammered out in fits and starts, in a series of judicial decision and extrajudicial developments, over the course of the twentieth century” (Strauss 52-53, 2010).

The components within the First Amendment that protect the freedom of expression can be broken down into two main categories. First, the 1964 case of New York Times v. Sullivan helped to solidify the protection of the people’s right to criticize the government. The case was the first to place limitations upon the government’s ability to fine individuals who defame public officials (Strauss 53-54, 2010). Then five years later, in Bradenburg v. Ohio, it was decided by the Court that you, as an individual, can exercise your right to freedom of speech and expression by going as far as advocating for violence and/or use of force legally “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action” (Strauss 54, 2010). Along the same vein, in the 1971 case of New York Times co. v. United States, the Court decided that the Pentagon papers (top secret government documents that revealed diplomatic secrets and detailed American involvement in the Vietnam war) were legally published by the New York Times seeing as the publication did not “surely result in direct, immediate, or irreparable damage to our Nation or its people” (Strauss 54, 2010). All these cases came together to underline the fact the people have the right to broad freedom of speech and expression. The government cannot infringe upon this right unless there is clear evidence that suggests other laws will be broken as a result of the exercising of the right; this is a very different image than what the drafters of the First Amendment presumably pictured. Second, within living constitutionalism, under the protection of the right to freedom of expression, there is a hierarchy in terms of which circumstances of exercising the right require the most protection from the Constitution and which the Constitution does not protect at all: “Certain values of low-value speech should receive less or no constitutional protection” (Strauss 55, 2010). Low-value speech, or relatively unimportant speech, includes instances of “obscenity, commercial speech, false and defamatory statements, perjury, blackmail, threats, criminal solicitation…” (Strauss 55, 2010). In lawmaking, laws must not infringe upon one’s rights to freedom of high-value speech, or relatively more important speech such as criticism of the government and public debate.

All this is in effect now because of the courts’ interpretations of the Constitution under living constitutionalism. The application of the Constitution now is very different from its first ratification. For example, eventually the Bill of Rights extended to states, but for a hundred years they did not extend to the states, and ultimately, the states were able to restrict freedom of expression freely and legally (Strauss 56, 2010). Also the focus of lawmaking has changed: “When the framers adopted the First Amendment, they were concerned with the balance of power between the federal government and the states and not just about protecting free expression in general. The entire focus of the debate over the First Amendment was on the federal government and on making clear that the Constitution’s grants of various powers to Congress did not include the power to restrict free speech or the press” (Strauss 59, 2010). The states, seeing as they were viewed as much more independent then, and federalism was much weaker, were seeking to protect their territories from an overly-powerful federal government and possible restrictions that could ensue. Ultimately, living constitutionalism has permitted for the practice of freedom of expression that we have today while still trying to maintain the central principles and themes of the American government granted to it by the Constitution.

Critical legal theory states that the law is inherently intertwined with social issues, essentially claiming that the law has social biases that maintain the status quo of systemic issues (Legal Information Institute). According to critical legal theorists, the law enables the protection of the privileged few and systemically disadvantages the underrepresented and underprivileged (Legal Information Institute). In “Speaking Respect, Respecting Speech,” lawyer Richard Abel attacks the legitimacy of First Amendment protections: first, by declaring that the line between accepted and prohibited speech is too subjective and, consequently, “rests on sociopolitical needs and judgements” (Gould 763). Secondly, Abel asserts that the marketplace of ideas—the concept that is used to defend free and unfiltered speech—skews in favor of the privileged few (Gould 764). Concurring with Abel’s assessment are Richard Delgado and Jean Stegancic, authors of “Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment” (Gould 765). They take issue with the view that First Amendment protections are neutral, instead declaring that this jurisprudence is “repeatedly reinforcing the status and views of the governing white, male elite” (Gould 765). While many scholars acknowledge that the judicial system is unintentionally political and, consequently, decides on legal matters, many believe that freedom of expression is an absolute, unwavering statue (Gould 767). Some, like Supreme Court Justice Black, believe that the First Amendment literally: that Congress shall make no law which restricts expression (Gould 767). Others argue that the values which motivated the First Amendment—“self-expression, truth seeking, and self-government—require that its doctrine be permanent and unwavering” (Gould 768). However, Gould points out “that we present cultural and political rationales for the norm of free speech mean[ing] that we determine its importance through social interactions (768).

Americans are often proud of their nation’s commitment to free speech; according to US jurisprudence, content-based restrictions on speech are generally unconstitutional unless they directly prevent criminality or public danger. Americans also tend to venerate the founding fathers, learning from a young age that the colonies courageously overthrew the British tyrants. Although free speech is enshrined in the Bill of Rights, the unique status that American courts have afforded free expression has little basis in originalism. Rather, such strong free-speech protection is a product of living-constitution theory and America’s modern notions of civil libertarianism. Originalist generally understand the First Amendment’s primary purpose as protecting political speech - not the broad speech protections we observe today. Justice Scalia, who was perhaps the country’s most prominent originalist, wrote the following sentence in his opinion of McConnell v. FEC: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Many key free-expression cases, including arguably the two most important in establishing a standard for content-based restrictions, did not draw on originalist thought. The Supreme Court’s opinion in Schenck v. US (1919), which established the clear and present danger test, draws on no founding-era understanding of the Constitution to defend this standard. Ditto for Brandenberg v. Ohio (1969), where the court replaced clear and present danger with the more-stringent imminent lawless action test. Obviously, there have been many other important free-speech cases. Still, the lack of originalist insight on such important cases is telling. Modern free-expression jurisprudence demonstrates more fidelity to living constitution theory than to originalism. As the University of Chicago’s David A. Strauss articulated, “a living Constitution is one that evolves, changes over time, and adapts to new circumstances” (2010). As such, free-speech interpretation can shift to meet the needs of a changing nation According to SMU’s Christopher Wolfe, seditious speech was accepted early in the nation’s history as an exception to the First Amendment because the nation’s stability was not a given then as it is today (2019, 536-7). Today, however, courts can reevaluate anti-government speech in light of the fact that the US is a global superpower.

There is even some evidence that the Supreme Court takes public opinion into consideration (Epstein and Martin 1). This might help explain why the court has moved toward broad free-speech protections in a country where free speech is a huge aspect of political culture (although this begs the question of whether causation occurs in the opposite direction).

School-speech cases exemplify the different First-Amendment Jurisprudence produced by living-constitution and originalist theory. Justice Thomas issued a strikingly originalist opinion in Morse v. Frederick (2007). Thomas analyzed the history of US public schools, which proliferated in the early 1800s (Thomas 2007, 2). He argues that early public schools “were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled ìa core of common valuesî in students and taught them self-control.” He concludes that because students in this area were not seen as having First-Amendment rights, neither are today’s. Meanwhile, in the court’s majority opinion in the landmark case Tinker v. Des Moines (1969), the court cited the following passage from Shelton v. Tucker (1960): “The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, (rather) than through any kind of authoritative selection." Here, it is argued that the First Amendment should protect schools’ current and future function as a breeding ground for ideas, regardless of whether such a function existed early in our nation’s history.

References:

Wolfe: https://scholar.smu.edu/cgi/viewcontent.cgi?article=4807&context=smulr

Fallone: https://law.marquette.edu/facultyblog/2018/12/on-originalism-and-the-first-amendment/ Dailey: https://open.bu.edu/bitstream/handle/2144/24083/Dailey_bu_0017N_12912.pdf?sequence=5

McConnell v. FEC: ttps://www.law.cornell.edu/supct/html/02-1674.ZX.html

Schenck v. US: https://www.law.cornell.edu/supremecourt/text/249/47

Brandenburg v. Ohio: https://www.law.cornell.edu/supremecourt/text/395/444

Strauss: https://www.law.uchicago.edu/news/living-constitution

Epstein and Martin: http://epstein.wustl.edu/research/supctEMPubOp.pdf

Morse v. Frederick: https://www.mtsu.edu/first-amendment/article/690/morse-v-frederick

Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, James E. Fleming, 1178, Boston University School of Law, 2011 Boston.

Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, Lawrence B. Solum, 1256, Northwestern University Law Review, 2019 Evanston.

The Living Constitution, David Strauss, 52-59, Oxford University Press, 2010 Oxford.

The Living Constitution, David Strauss, The University of Chicago Law School, 2010 Chicago.

Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right? 🖉 edit

Freedom of expression is recognized in many philosophical and moral traditions as a fundamental right. Communitarianism is described as “…the idea that human identities are largely shaped by different kinds of constitutive communities (or social relations) and that this conception of human nature should inform our moral and political judgments as well as policies and institutions.” (Bell 2024). The core idea argues that communities shape our judgements and that humans have an obligation to support the communities that shaped their judgements. Since the core idea of communitarianism is that the community comes before all else, this means that basic freedoms, including freedom of expression, must be balanced against the needs and values of the community. Community cohesion is paramount to communitarianism, and in certain communities, freedom of expression could undermine social order. Some forms of expression could prove harmful to the community, so this philosophy argues that those expressions should be censored (Bell 2024).

Freedom of expression was not recognized for much of history. Freedom of expression was seen in ancient Athens, but there were philosophers that disputed it. Plato wrote in Republic against freedom of expression. Republic is a theory for a perfect city, and Plato believed that some form of censorship would be needed. Plato doesn’t disagree with freedom of expression; he believes it is a valuable tool to be used by philosophers and just men.

References:

Bell, Daniel. “Communitarianism.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta and Uri Nodelman, Summer 2024. Metaphysics Research Lab, Stanford University, 2024. https://plato.stanford.edu/archives/sum2024/entries/communitarianism/.

Glaun, Dan. “Germany’s Laws on Antisemitic Hate Speech and Holocaust Denial.”. FRONTLINE (2021). https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/.