Freedom of Expression Throughout History

There have been attempts to silence people as long as there have been laws.

Speech codes are built into many languages: There are different levels of formality and informality in addresses, terms that should not be used in particular situations, and even different patterns of speech for men and women. Although European languages do not have the same levels of baroque distinction as other languages, they still have formal and informal registers. The English language is unique in that it has mostly abandoned them; you was previously the formal/plural form of address (thee being the familiar).

However, when we talk of freedom of expression, we usually mean state-backed legal limits. These, too, are thousands of years old. Edicts from the past stipulated who was permitted to speak what and to whom. "If a slave woman curses someone acting on her mistress's authority, they shall scrub her lips with one sila [0.85 liter] of salt," the Sumerian Code of Ur-Nammu declared around 2500 B.C. I'm sure she wasn't permitted to say anything negative about slavery.

Jacob Mchangama's book Free Speech: A History From Socrates to Social Media rushes across thousands of years of intellectual and political history to demonstrate how unique—and crucial—the concept of free speech is. Over the last decade, Mchangama, a Danish lawyer, has been a strong advocate for liberty, notably in the context of Islamic blasphemy allegations in Europe. His book is a fantastic resource for anyone interested in learning why free speech is so important.

For most of European history, much of the speech that was heavily regulated was considered heretical or subversive. (Or both: the divine right of monarchs entailed a lot of cross-pollination.) Early universities, as Mchangama demonstrates, were both venues of information exchange and crackdowns on anyone suspected of promoting hazardous ideas.

Most people didn't have access to the contentious literature that bothered scholar-monks, thus these arguments were forced to be elite affairs. With the invention of the printing press, this began to alter, albeit it did not mean that the typical reader was instantly drawn to Thomas Aquinas. The same printing mills that distributed philosophical books also "churned out a regular stream of venomous political and religious propaganda, hate speech, vulgar drawings, and treatises on witchcraft and alchemy," as Mchangama points out.

Every new mode of communication demonstrates this. Someone started taking nudie photos about five minutes after the invention of the image. The printing press, however, opened openings to new forms of thinking that went far beyond smutty woodcuts. Martin Luther was not the first to criticize the church, but he was the first to fall on the Gutenberg side of the debate. As a result, his ideas disseminated to others who weren't readers.

Luther's understanding of his audience aided him. "The punchy text was accompanied by drawings for the benefit of the uneducated who readily shared his anti-Catholic memes," Mchangama adds, "and the snappy text was accompanied by illustrations for the benefit of the ignorant who eagerly shared his anti-Catholic memes."

Luther's attacks on the pope did not go over well with everyone, and the Reformation's conflicts resulted in a flurry of publications on all sides. Legislation rushed to keep up with fresh speech threatening the old system, just as it does now. The print revolution produced not only books but also newspapers, which disseminated ideas, facilitated commerce, and linked communities. Paper and ink, as well as postal networks, became more economical as technology and trade progressed. You'll soon be able to offend someone hundreds of kilometers away.

During the Enlightenment, political discussions abound in pamphlets and newspapers, and they can be lofty and essential. However, many of them were not. "Quickly deteriorated into an eighteenth-century form of flame, trolling, name-calling, motivated reasoning, and slaughtering of straw men," Mchangama writes.

In this setting, the French Revolution sent shockwaves across Europe, as scared rulers sought to suppress republican ideals spreading among their subjects—the kind of reactive legislation that has marked the history of free expression. Over the course of the nineteenth century, Europe gradually established a more laissez-faire attitude regarding speech (with occasional glitches), albeit some of the more conventional clerical viewpoints would persist longer in Catholic countries. But no country in Europe took the concept of free speech as far as America did.

As high-minded liberalism collided with political realities, there were still boundaries. The Founders sought to keep libel and slander under control, and the British legacy of a reasonably developed civil-suit culture was one way to do so. With the short-lived Sedition Act of 1798, a more heavy-handed approach developed not long after the federal experiment began. It authorized those who wrote "false, scandalous, or malicious material" against the United States government to be deported or imprisoned. The act was repealed three years later, but it had an impact on the argument over what types of expression should be permitted.

The conflict over slavery was another key stumbling barrier. Southern states attempted to outlaw and penalize abolitionist literature by enacting legislation that labeled it as inflammatory. ""This included the idea of group libel—a predecessor of present 'hate speech' legislation, which protected certain groups from defamatory claims," Mchangama points out. Senator Calhoun claimed the abolitionist petitions had "injurious reflections" on Southerners who were being "deeply, basely, and maliciously slandered."" The unfortunate slaveowners would be hurt to hear that others thought they were evil.

Despite the First Amendment's promises, America's uneven approach to free expression has persisted over the decades. The Sedition Act of 1918 outlawed speech that was perceived as defaming the government, military, or flag, or speech that was otherwise considered disloyal. (In reaction, the American Civil Liberties Union was founded in 1920.) It wasn't just political discourse that had to be controlled. The Comstock Act of 1873 outlawed "obscene" publications, which included not only pornography but also family-planning leaflets, according to the authorities. The birth control laws were not overturned until the 1965 case of Griswold v. Connecticut.

The totalitarian governments of the twentieth century posed new challenges on a worldwide scale. Despots, understandably, aren't great fans of free speech. But, in the face of despots, how should democracies respond? In the sake of maintaining freedom, certain countries, such as Germany, have implemented laws prohibiting the dissemination of Nazi propaganda, so curtailing free expression. Is putting something off-limits, however, the best approach to deal with it?

Mchangama describes the postwar struggle over the United Nations' Declaration of Human Rights, specifically the clause declaring the right to freedom of expression. This was always going to irritate those whose religious beliefs require that blasphemers be punished, especially as international mass media spread undesirable ideas from one place to the next. The fatwa issued against Salman Rushdie was the first important case to bring this conflict to light. The problem persists as governments attempt to strike a compromise between their stated devotion to free speech and laws prohibiting the spread of hatred.

Meanwhile, blasphemy exists in the secular world as well. When our politicians and tech gods talk about cracking down on "disinformation," I have a sneaking hunch they don't simply mean Sandy Hook truthers—they mean political views they don't like, the kind of thing they used to term "sedition" in 1798. The net of justification inevitably widens whenever the government is empowered to silence expression.


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