7 Evolution of the Right to Free Speech and Expression

Prof. Abhishek Sudhir

1. Learning Outcomes

The purpose of this chapter  is:

• To give the students an overview of the historical development of right to freedom of speech and expression.
• To help the students understand the manner in which the right to freedom of speech and expression has developed gradually through political and apolitical discourses.

Introduction (Voice Over)

The right to free speech and expression is the single most important right in any democratic society based on the rule of law. This module will introduce you to some of the landmark events which contributed towards the development of the right in its present form. In the modern world, the first amendment to the American constitution is a turning point in the development of the right as it was for the first time that it was codified in a written constitution and has survived since then without its scope being limited. The module accordingly has been classified into two principal sections: developments pre-dating the first amendment and developments post-dating the first amendment.

3. Origins of the Right to Free Speech

3.1 Developments Pre-dating the First Amendment to US Constitution

In modern world, America is known to be the champion of free speech and democracy. The country is known for extremes when it comes to allowing speech, be it the burning of their own flag or a religious holy book. However, the concept of allowing free speech so as to allow for different perspectives is much older than the United States of America and has been in existence for several centuries.

3.1.1 Socrates & Plato

Socrates, after being condemned to death refuses to escape as he believes that since he has consented to the laws of Athens for seventy years and has enjoyed the rights and privileges conferred on him by doing so, it will be wrong on his part to withdraw his consent merely because his life is under threat. However, he argues that his obedience to the law is as imperative for him as was his disobedience to laws which would abridge his belief and the expression of it.

Plato also draws a parallel with Socrates’ experience, stating that when a government by passing a law tries to limit the freedom of a person’s opinion that person has both the right and duty to disobey such law but when by regular procedure his life, stock or property is taken by law he must comply.

3.1.2 – Arthashastara

The Arthashastara is a text that was written at the end of the fourth century BC by Kautilya dealing with various theories and principles of governing a state . In Arthashastra, Kautilya approves of an actor making making fun of almost anything including (customs of) countries, castes, families, schools and love-affairs. However, criticizing the king for Kautilya is not permissible and one who does so does it at his own peril; Kautilya states that such persons should have their tongue rooted out.

3.1.3 – Ancient Greece

The Athenian democracy could not have survived without free speech for without free speech there is no democracy. There was most probably no prohibition on the common citizenry addressing the village assembly, where even outraged farmers often spoke out of turn.

3.1.4 – The Education of a Christian Prince by Erasmus

The importance of free speech has not only been celebrated in modern democracies but even in authoritarian regimes. Desiderius Erasmus, a Dutch Renaissance humanist who also happened to be teacher of autocratic princes tried to impress on them that in a free state, “tongues should be free as well, and that the stability of their rule would ultimately benefit from unvarnished political advice”.

3.1.5 – John Milton

John Milton an English civil servant and a famous poet wrote an influential piece advocating freedom of speech in which he argued:

“… as good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, Gods Image; but he who destroys a good Book, kills reason it self, kills the Image of God, as it were in the eye. Many a man lives a burden to the Earth; but a good Book is the precious life-blood of a master spirit, imbalm’d and treasur’d up on purpose to a life beyond life.”

3.1.6 – Bill of Rights, 1689

The Bill of Rights is an Act of the Parliament of England passed on 16 December 1689. It is essentially a restatement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689, inviting them to become joint sovereigns of England. Article 9 of the act given below provided for free speech in parliament.

Article 9 – 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.

3.1.7 – Declaration of the Rights of Man and of the Citizen, 1789

The Declaration of the Rights of Man and of the Citizen was passed by the National Constituent Assembly on 26 August 1789 during the French Revolution. It was drafted by Lafayette with the aid of his American friend Thomas Jefferson and the declaration was modelled on The Virginia Declaration of Rights and the American Declaration of Independence. The declaration is based on the concept of natural rights that human being possess i.e. inviolable rights by virtue of them being humans and the state is obligated to protect these rights of the citizens. The declaration has found a place in the current (fifth) Constitution of the Republic of France and its predecessor, the Constitution of the Fourth Republic of France.

Article 11 of the Act states that:

“The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”

3.2 Developments since and after the First Amendment to the US Constitution

3.2.1 – First Amendment – US Constitution, 1791

The First amendment to the American Constitution is perhaps the most important event with regard to development of free speech in the modern world. The First Amendment (along with the rest of the Bill of Rights) was submitted to the States for ratification on September 25, 1789, and adopted on December 15, 1791. Thus, the proposal for the first amendment was made at the same time as the Declaration of the Rights of Man and the Citizen was being passed by French National Assembly. The First Amendment along with other rights were included in the Constitution at the insistence of George Mason who had earlier drafted Virginia’s Declaration of Rights on which the ‘bill of rights’ in the American Constitution is based. Interestingly, it was eventually drafted by James Madison who initially had opposed the enumeration of rights in the constitution stating that enumeration of certain rights in the constitution may be perceived to mean the exclusion of other rights. The support for the First Amendment was such that there was little or no debate on it thus making it difficult to ascertain the intention of framers and consequentially the limits of the rights granted in the amendment.

The text of the First Amendment is as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

3.2.2 – Expansion of Freedom of Speech through Judicial Decisions

The first amendment passed the House and Senate with practically no recorded debate thus complicating the intent of the framers. Through a series of judicial pronunciations its scope has been widened and some of the principles expressed in these judicial decisions have been adopted by different nations around the world, including India.

3.2.2.1 – United States v. Schwimmer

This case1 concerned Rosika Schwimmer who was a pacifist (a person who believes that war and violence are unjustifiable). She had applied for American citizenship and while taking the oath of allegiance, she was asked whether she would raise arms in defence of United States. She answered in the negative and she was denied citizenship. She challenged this in Court and lost. Justice Holmes in this case while delivering his dissenting opinion strongly defended unpopular speech by stating that freedom of speech extends to protecting speech that we despise and not speech that we would like to hear. In his own words he says “Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

3.2.2.2 – Terminiello v. Chicago

The petitioner Arthur Terminiello in this case was a Catholic priest who while delivering a speech to the Christian Veterans of America extensively criticized various racial groups and made a number of provocative comments2. The place he delivered his speech had accommodated approximately 800 people and at the same time a crowd of approximately 1,000 people outside the venue had gathered to protest his speech. The situation got out of hand, and the police could not maintain order. The petitioner was subsequently charged and found guilty under Chicago’s peace ordinance and was asked to pay a fine of 100 dollars. He challenged his conviction and eventually the case reached Supreme Court where his conviction was reversed as it was held that his speech was protected under the first amendment. Justice Douglas in his famous majority opinion goes on to say that free speech best serves its purpose when it invites dispute and unrest. He writes:

“Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas.”

3.2.2.3 – Texas v. Johnson

Gregory Lee “Joey” Johnson was a member of a political organization and was participating in a demonstration protesting against the policies of the Ronald Reagan administration and certain companies in Dallas3. During the demonstration Johnson got hold of an American flag which was stolen from a flagpole outside one of the buildings where demonstrations were to be carried out. After reaching the venue of the protest, Johnson set the flag on fire, and the flag-burning was accompanied with chants of “America, the red, white, and blue, we spit on you, you stand for plunder, you will go under,” which offended certain people observing the protest. Johnson subsequently was charged with Desecration of a Venerated Object under the Texas Penal Code and was sentenced to one year in prison with a fine of two thousand dollars. Johnson challenged the sentence on the ground that burning of flag was a form of expression protected under the first amendment. Johnson’s contention was upheld by the American Supreme Court.

4. Summary

It can therefore be seen that the right to freedom of speech and expression is not a recent phenomenon. It has been in existence since time immemorial and in fact this right has gained more legitimacy as time has progressed. As democratic regimes continue to prosper and develop, this right’s scope will expand even further.

Reference

• Boesche, R. (2002). The first great political realist: Kautilya and his Arthashastra. Lexington Books.
• Meiklejohn, A. (1948). Free speech and its relation to self-government. The Lawbook Exchange, Ltd.
• Milton, J. (1886). Areopagitica. Clarendon Press.
• Avalon (2014). Avalon Project – Declaration of the Rights of Man – 1789. [online] Available at: http://avalon.law.yale.edu/18th_century/rightsof.asp [Accessed 25 Dec. 2014].
• Democracy Web, (2014). Freedom of Expression: History. [online] Available at: http://www.democracyweb.org/expression/history.php [Accessed 25 Dec. 2014].
• UCLA Division of Social Sciences, (2014). Manas: History and Politics, Kautilya. [online]
• Available at: https://www.sscnet.ucla.edu/southasia/History/Ancient/Kautilya.html [Accessed 25 Dec. 2014].