The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Volume Ii
• Preface to Part Iv (when First Issued Separately)
• Part IV.: The Ethics of Social Life: Justice
• Chapter 1.: Animal Ethics
• Chapter 2.: Subhuman Justice
• Chapter 3.: Human Justice
• Chapter 4.: The Sentiment of Justice
• Chapter 5.: The Idea of Justice
• Chapter 6.: The Formula of Justice
• Chapter 7.: The Authority of This Formula
• Chapter 8.: Its Corollaries
• Chapter 9.: The Right to Physical Integrity
• Chapter 10.: The Rights to Free Motion and Locomotion
• Chapter 11.: The Rights to the Uses of Natural Media
• Chapter 12.: The Right of Property
• Chapter 13.: The Right of Incorporeal Property
• Chapter 14.: The Rights of Gift and Bequest
• Chapter 15.: The Rights of Free Exchange and Free Contract
• Chapter 16.: The Right to Free Industry
• Chapter 17.: The Rights of Free Belief and Worship
• Chapter 18.: The Rights of Free Speech and Publication
• Chapter 19.: A Retrospect With an Addition
• Chapter 20.: The Rights of Women
• Chapter 21.: The Rights of Children
• Chapter 22.: Political Rights–so-called
• Chapter 23.: The Nature of the State
• Chapter 24.: The Constitution of the State
• Chapter 25.: The Duties of the State
• Chapter 26.: The Limits of State Duties
• Chapter 27.: The Limits of State Duties–continued
• Chapter 28.: The Limits of State Duties–continued
• Chapter 29.: The Limits of State Duties–concluded
• Part V.: The Ethics of Social Life: Negative Beneficence
• Chapter 1.: Kinds of Altruism
• Chapter 2.: Restraints On Free Competition
• Chapter 3.: Restraints On Free Contract
• Chapter 4.: Restraints On Undeserved Payments
• Chapter 5.: Restraints On Displays of Ability
• Chapter 6.: Restraints On Blame
• Chapter 7.: Restraints On Praise
• Chapter 8.: The Ultimate Sanctions
• Part VI.: The Ethics of Social Life: Positive Beneficence
• Chapter 1.: Marital Beneficence
• Chapter 2.: Parental Beneficence
• Chapter 3.: Filial Beneficence
• Chapter 4.: Aiding the Sick and the Injured
• Chapter 5.: Succor to the Ill-used and the Endangered
• Chapter 6.: Pecuniary Aid to Relatives and Friends
• Chapter 7.: Relief of the Poor
• Chapter 8.: Social Beneficence
• Chapter 9.: Political Beneficence
• Chapter 10.: Beneficence At Large
• Appendices
• Appendix A.: the Kantian Idea of Rights
• Appendix B.: the Land Question
• Appendix C.: The Moral Motive
• Appendix D.: Conscience In Animals
• Appendix E.: Replies to Criticisms
• References

CHAPTER 18.

The Rights of Free Speech and Publication

321. The subject matter of this chapter is scarcely separable from that of the last. As belief, considered in itself, does not admit of being controlled by external power–as it is only the profession of belief which can be taken cognizance of by authority and permitted or prevented, it follows that the assertion of the right to freedom of belief implies the right to freedom of speech. Further, it implies the right to use speech for the propagation of belief; seeing that each of the propositions constituting an argument or arguments, used to support or enforce a belief, being itself a belief, the right to express it is included with the right to express the belief to be justified.

Of course the one right like the other is an immediate corollary from the law of equal freedom. By using speech, either for the expression of a belief or for the maintenance of a belief, no one prevents any other person from doing the like: unless, indeed, by vociferation or persistence he prevents another from being heard, in which case he is habitually recognized as unfair, that is, as breaking the law of equal freedom.

Evidently with change of terms, the same things may be said concerning the right of publication–“the liberty of unlicensed printing.” In respect of their ethical relations, there exists no essential difference between the act of speaking and the act of symbolizing speech by writing, or the act of multiplying copies of that which has been written.

One qualification, implied by preceding chapters, has to be named. Freedom of speech, spoken, written, or printed, does not include freedom to use speech for the utterance of calumny or the propagation of it; nor does it include freedom to use speech for prompting the commission of injuries to others. Both these employments of it are obviously excluded by those limits to individual liberty which have been set forth.

322. Though in our time and country defense of these rights seems needless, it may be well to deal with such arguments against them as were urged among ourselves in comparatively recent times and are still urged in other countries.

It is said that a government ought to guarantee its subjects “security and a sense of security”; whence it is inferred that magistrates ought to keep ears open to the declamations of popular orators, and stop such as are calculated to create alarm. This inference, however, is met by the difficulty that since every considerable change, political or religious, is, when first urged, dreaded by the majority, and thus diminishes their sense of security, the advocacy of it should be prevented. There were multitudes of people who suffered chronic alarm during the Reform Bill agitation; and had the prevention of that alarm been imperative, the implication is that the agitation ought to have been suppressed. So, too, great numbers who were moved by the terrible forecasts of The Standard and the melancholy wailings of The Herald, would fain have put down the free-trade propaganda; and had it been requisite to maintain their sense of security, they should have had their way. And similarly with removal of Catholic disabilities. Prophecies were rife of the return of papal persecutions with all their horrors. Hence the speaking and writing which brought about the change ought to have been forbidden, had the maintenance of a sense of security been held imperative.

Evidently such proposals to limit the right of free speech, political or religious, can be defended only by making the tacit assumption that whatever political or religious beliefs are at the time established, are wholly true; and since this tacit assumption has throughout the past proved to be habitually erroneous, regard for experience may reasonably prevent us from assuming that the current beliefs are wholly true. We must recognize free speech as still being the agency by which error is to be dissipated, and cannot without papal assumption interdict it.

Beyond the need, in past times unquestioned, for restraints on the public utterance of political and religious beliefs at variance with those established, there is the need, still by most people thought unquestionable, for restraining utterances which pass the limits of what is thought decency. or are calculated to encourage sexual immorality. The question is a difficult one–appears, indeed, to admit of no satisfactory solution. On the one hand, it seems beyond doubt that unlimited license of speech on these matters, may have the effect of undermining ideas, sentiments, and institutions which are socially beneficial; for, whatever are the defects in the existing domestic regime, we have strong reasons for believing that it is in most respects good. If this be so, it may be argued that publication of doctrines, which tend to discredit this regime, is undoubtedly injurious and should be prevented. Yet, on the other hand, we must remember that in like manner it was, in the past, thought absolutely certain that the propagators of heretical opinions ought to be punished, lest they should mislead and eternally damn those who heard them; and this fact suggests that there may be danger in assuming too confidently that our opinions concerning the relations of the sexes are just what they should be. In all times and places people have been positive that their ideas and feelings on these matters, as well as on religious matters, have been right; and yet, assuming that we are right, they must have been wrong. Though here in England we think it clear that the child marriages in India are vicious, yet most Hindus do not think so; and though among ourselves the majority do not see anything wrong in mercantile marriages, yet there are many who do. In parts of Africa not only is polygamy regarded as proper but monogamy is condemned, even by women; while in Tibet polyandry is not only held right by the inhabitants but is thought by travelers to be the best arrangement practicable in their poverty-stricken country. In presence of the multitudinous differences of opinion found even among civilized peoples, it seems scarcely reasonable to take for granted that we alone are above criticism in our conceptions and practices; and unless we do this, restraints on free speech concerning the relations of the sexes may possibly be hindrances to something better and higher.

Doubtless there must be evils attendant on free speech in this sphere as in the political and religious spheres; but the conclusion above implied is that the evils must be tolerated in consideration of the possible benefits. Further, it should be borne in mind that such evils will always be kept in check by public opinion. The dread of saying or writing that which will bring social ostracism, proves in many cases far more effectual than does legal restriction.

323. Though it is superfluous to point out that, in common with other rights, the rights of free speech and publication, in early times and most places either denied or not overtly recognized, have gradually established themselves; yet some evidence may fitly be cited with a view to emphasizing this truth.

Various of the facts instanced in the last chapter might be instanced afresh here; since suppression of beliefs has, by implication, been suppression of free speech. That the anger of the Jewish priests against Jesus Christ for teaching things at variance with their creed led to his crucifixion; that Paul, at first a persecutor of Christians, was himself presently persecuted for persuading men to be Christians; and that by sundry Roman emperors preachers of Christianity were martyred; are familiar examples of the denial of free speech in early times. So, too, after the Christian creed became established, the punishment of some who taught the nondivinity of Christ, of others who publicly asserted predestination, and of others who spread the doctrine of two supreme principles of good and evil, as well as the persecutions of Huss and Luther, exemplify in ways almost equally familiar the denial of the right to utter opinions contrary to those which are authorized. And so, in our country. has it been from the time when Henry IV enacted severe penalties on teachers of heresy, down to the 17th century when the nonconforming clergy were punished for teaching any other than the church doctrine and Bunyan was imprisoned for open-air preaching–down, further, to the last trial for propagating atheism, which is within our own recollection. But gradually, during recent centuries, the right of free speech on religious matters, more and more asserted, has been more and more admitted; until now there is no restraint on the public utterance of any religious opinion, unless the utterance is gratuitously insulting in manner or form.

By a parallel progress there has been established that right of free speech on political questions, which in early days was denied. Among the Athenians in Solon's time, death was inflicted for opposition to a certain established policy; and among the Romans the utterance of proscribed opinions was punished as treason. So, too, in England centuries ago, political criticism, even of a moderate kind, brought severe penalties. Later times have witnessed, now greater liberty of speech and now greater control: the noticeable fact being that during the war period brought on by the French revolution, there was a retrograde movement in respect of this right as in respect of other rights. A judge, in 1808, declared that “it was not to be permitted to any man to make the people dissatisfied with the government under which he lives.” But with the commencement of the long peace there began a decrease of the restraints on political speech, as of other restraints on freedom. Though Sir F. Burdett was imprisoned for condemning the inhuman acts of the troops, and Leigh Hunt for commenting on excessive flogging in the army, since that time there have practically disappeared all impediments to the public expression of political ideas. So long as he does not suggest the commission of crimes, each citizen is free to say what he pleases about any or all of our institutions: even to the advocacy of a form of government utterly different from that which exists, or the condemnation of all government.

Of course, with increasing recognition of the right of free speech there has gone increasing recognition of the right of free publication. Plato taught that censors were needful to prevent the diffusion of unauthorized doctrines. With the growth of ecclesiastical power there came the suppression of writings considered heretical. In our own country under Queen Elizabeth, books had to be officially authorized; and even the Long Parliament reenforced that system of licensing against which Milton made his celebrated protest. But for these two centuries there has been no official censorship, save of public plays. And though many arrangements for shackling the press have since been made, yet these have gradually fallen into disuse or been repealed.

324. But in this case, as in cases already noticed, it follows from the precedence which the preservation of the society has over the claims of the individual, that such restraints may rightly be put on free speech and free publication as are needful during war to prevent the giving of advantage to the enemy. If, as we have seen, there is ethical justification for subordinating the more important rights of the citizen to the extent requisite for successfully carrying on national defense, it of course follows that these less important rights may also be subordinated.

And here, indeed, we see again how direct is the connection between international hostilities and the repression of individual freedom. For it is manifest that throughout civilization the repression of freedom of speech and freedom of publication, has been rigorous in proportion as militancy has been predominant; and that at the present time, in such contrasts as that between Russia and England, we still observe the relation.

After recognizing the justifiable limitations of these rights, that which it concerns us to note is that they, in common with the others severally deduced from the law of equal freedom, have come to be recognized in law as fast as society has assumed a higher form.