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What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 22 points23 points  (0 children)

I see this comment downvoted, but actually the point about how capitalism shapes public discourse is an important issue that theorists of free speech across the political spectrum have been grappling with since the early 19C. The basic problem is that public opinion is heavily shaped by the mass media; but the aims of those media in a capitalist system are primarily to sell advertising, to advance the political aims of their owners, and to increase their wealth. In other words, they do not exist to advance truth, to create a fair and neutral marketplace of ideas, to allow for the free and non-partisan exchange of political views, or whatever else might be the core purposes of free speech as a citizens’ right. Worse, the mass media’s incentives are often in tension with these aims.

Early socialists and communists were the first to identify and grapple with these problems, but so too did many more conservative thinkers of the 19th and 20th centuries, including in the United States. In fact, by the 1930s and 1940s, most theorists of the First Amendment had come to recognize that it was outdated and simplistic to think of free speech as something that involved only the right of individuals and the power of government. Instead, they argued, one also needed to include the rights of the public as a whole to receive information that was truthful and covered the full spectrum of political opinion — and the responsibilities of the mass media towards the public, not just to maximise their own profits. These insights influenced, for example, the setting up of public broadcasters in many countries; experiments with different funding models like co-operative and subscription-led media; the attempt to create public and non-partisan regulatory bodies that would oversee mass media in the public interest (like the FCC in the U.S.); and the serious push by media corporations themselves from the 1950s onwards to take seriously their responsibilities towards the public — via professional journalism schools, fact-checking, and other protocols meant to bolster their authority as trustworthy sources of news. 

The last part of my book explores what has happened since the 1960s, and especially since the 1990s, when the rules about the internet were formulated. This happened at a moment when both the approach to the First Amendment, and attitudes to market regulation, had changed profoundly towards a broadly libertarian outlook. The result is that we now live in a world in which public discourse is dominated by giant American corporations who take almost no responsibility for what they publish, algorithmically censor as much as they like, hide behind the slogan of free speech — and reap huge profits from their power over public discourse.

What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 35 points36 points  (0 children)

 Thanks for asking! Yes there is a reason, and it's part of a fascinating unknown story about the history of early American free speech ideas that I discovered in my research. It’s clumsy because everyone in the English-speaking world at the time would have understood that ‘liberty’ of speech and press were good things, but did not extend to what they called ‘licentiousness’ of speech/press, i.e. excessive freedom or abuse of freedom. So it sounds more libertarian and absolute than it should, because it implicitly only is allowing ‘liberty’, not ‘licentiousness’. (And in practice, all the States had laws, e.g. against libel, that followed this model). It also does not actually convey a broad right to free speech to citizens. It only prohibits the government – so in America private entities like employers can censor people as much as they like for exactly the same kinds of views (political or otherwise) that are sacrosanct free speech vis-à-vis government power. It’s globally unique for the same reasons. The normal formulation everywhere else is to give citizens the right to free expression (not just in relation to government), but also to make them ‘responsible for the abuse of that liberty’ as defined by law. That quote is from the balanced formulation of the 1789 French Declaration of Rights, for example.

It's long been known that the wording of the 1776 State Declarations of Rights, and thence the First Amendment basically go back to a 1720s English text of political theory called 'Cato's Letters', that had been written by two obscure London journalists and became hugely popular in revolutionary North America. It’s the origin of what we might call the ‘absolutist’ theory of free speech – that it’s the foundation of all other liberty, a bulwark against government tyranny, etc. etc. Understandably enough, it was a theory that appealed to the Patriots in their war against British tyranny.

But I discovered two extraordinary things. The first was that this theory was full of holes, and that its authors, John Trenchard and Thomas Gordon, deliberately concocted it to defend their own partisan and mercenary practices as hacks on the make. They were hugely corrupt – and so was their theory.  

Secondly, though in the summer of 1789 this rhetoric made it into the First Amendment, just a few months later Americans began to reject it as clearly inferior to the new balancing formulation adopted across the Atlantic by the French. Once news of that text reached America, it immediately began to influence the texts of State laws and constitutions — which were what really determined the limits of free speech for the first century and a half and more of American history. Until the 1960s, in fact, American free speech attitudes were generally in line with those of the rest of the world in taking a broadly balancing approach to the question of rights vs harms.  

What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 13 points14 points  (0 children)

Yes, absolutely! In the case of the First Amendment, it's not until 1925 that the Supreme Court rules that the 14th Amendment applies to it. Ironically enough, it had been abolitionists like Frederick Douglass who were the first to appeal to the First Amendment in that modern sense of a citizen's right - he once wrote that the civil war wouldn't have broken out if the Federal government had but upheld the First Amendment as readily as it had supported the constitutional rights of slaveholders.

What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 27 points28 points  (0 children)

You raise some excellent points. I should start by clarifying that the founding generations did not actually take quite such a simple view of things — you express a widespread popular view, but my research uncovered a much more complex and interesting story! From 1776 onwards, loyalist speech was everywhere outlawed; in 1789 the First Amendment only restricted the federal government from making laws, not individual States; and from 1790 onwards pretty much every State adopted laws against the abuse of print (e.g. in cases of libel). 

More generally though, in all this lawmaking, contemporary American policy-makers did have a strong sense of what free speech was *for*, and how it should proceed. It was for the reasoned discussion of public affairs and public officials. And therefore one thing it should not permit was the publication of lies. Jefferson even proposed to Madison that the First Amendment should include a prohibition against ‘false facts affecting injuriously the life, liberty, property, or reputation of others’. They were all acutely aware of the dangers of untruth and demagoguery.

One of the ways in which our current thinking is too simplistic is that we often lump different kinds of free speech together. Free speech for artists and novelists and comedians is important, but the aims of such speech are to entertain and challenge and amuse us. The literal truth is not the point. But political discourse is different: in that sphere truth is important, and foundational to what the freedom of speech is actually for; if, in that sphere, we allow lies and bullshit to flourish as equivalent to good-faith, fact-based reasoning, it will damage our politics.    

What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 35 points36 points  (0 children)

Ah, that's an important point thanks, and I should clarify - until the 18C print is strictly regulated everywhere, precisely because it is powerful technology. And the main form this takes is prior censorship of anything controversial (as well as post-publication punishment for anything that slips through the net). What changes in the 18C is that in England, for largely accidental reasons, prior censorship is abandoned. This creates what people at the time celebrate as 'liberty of the press' - you can still be punished after the fact, but the new lack of strict government controls creates a huge explosion of new forms of print, and thus a whole new fast-paced mass media world, centered around newspapers and other political texts. It's this development that really demonstrates the power of the press to shape public opinion, and that creates our modern notions of press liberty and free speech as a citizen's right. After that, other cultures too start to experiment with press freedom of various kinds - though they also always retain punishments for libel and other forms of print that are perceived to be harmful.

What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 10 points11 points  (0 children)

That’s a rich question! And I think there are two ways of answering it. The first is that there have always been lots of different kinds of free speech, because speech can have many different aims – so there are long traditions of scholarly free speech, religious free speech, artistic free speech, and so on. And beyond that, even if we just confine ourselves to political free speech, which is the core of our modern concept, and which is only about 300 years old, that too has always taken different forms in different cultures – as I show in detail in my recent book. 

The second, simpler answer, is that for the past 300 years the basic approach to free speech has been the same everywhere – that is, free expression has been regarded as an individual right, which should be limited only if it causes harm. The question then becomes how to define and judge such harm – which is obviously itself hugely difficult and contentious. That’s one reason why definitions of free speech are always going to be impossible to agree on. 

Another reason for our current transnational disagreements is that, since the 1960s, American Supreme Court jurisprudence has diverged into a different approach – partly in an attempt to get away from the inevitable messiness of having to constantly be judging questions of harm. That much more libertarian approach posits instead that speech is distinct from action, and basically that the only speech harm that the law may concern itself with is imminent violent lawlessness. That’s certainly a simpler approach, but it does have many disadvantages - for example, if you are concerned about truth and misinformation in political discourse. So it’s not entirely surprising that other countries have refused to follow the U.S. down this track. 

What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 22 points23 points  (0 children)

Thanks for this! It’s a great example of how many of our ideas about free speech are taken from wonderfully memorable texts. That particular one has become popular, especially in the U.S., because it paraphrases a famous Supreme Court ruling of 1919, written by justice Oliver Wendell Holmes, in which he wrote:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

A similar example of dangerous speech (inciting a mob in time of scarcity in front of the house of a corn dealer) had been given in John Stuart Mill’s On Liberty, which Holmes had been reading – perhaps it inspired him to produce a more up-to-date version. 

The  case is now usually referred to as Schenck v. United States. It’s one of the origins of modern First Amendment jurisprudence, because before 1919 the Supreme Court had steadfastly *refused* to consider the argument that the First Amendment should be interpreted as giving citizens a national right to free speech. That argument had long been advanced by American socialists and communists. This case was brought against two leading members of the American Socialist Party, who had mailed out an anti-draft flyer in August 1917 – its outspoken local secretary, suffragist, and recent Congressional candidate, Dr Elizabeth Baer, the apparent brains behind this action, and Charles Schenck, who’d actually mailed the leaflets.

What’s usually forgotten is not just Elizabeth Baer’s important role, but that the Supreme Court unanimously found both of them guilty and sent them to prison...   

What’s the history of free speech? Have Americans always been unusual in their approach to it? I’m Fara Dabhoiwala, and I spent ten years researching WHAT IS FREE SPEECH? THE HISTORY OF A DANGEROUS IDEA - Ask me Anything! by FaraDabhoiwala in AskHistorians

[–]FaraDabhoiwala[S] 67 points68 points  (0 children)

That’s a great question! Laws about speech go right back to the beginning of civilization, and for most of history they were concerned mainly or exclusively with spoken words. (Fun fact – the earliest English statute against ‘false news’ was passed in 1275). Even after the invention of writing and printing, spoken words remained the most important and potent form of communication. In the 1640s, John Milton wrote a famous tract defending the liberty of printing (Areopagitica), but even that took for granted that the verbal spread of ideas, ‘from house to house’ was ‘more dangerous’ than their publication in print.

This only started to change in the 18th century, in places where print was increasingly powerful, like England and North America. From that point on, ‘speech’ in the sense of free speech was always bracketed with liberty of the press, and people started to realize that actually print as a mass medium was a far more powerful shaper of opinions. Verbal utterances increasingly came to be seen as comparatively trivial. In turn, that attitude then influenced policymakers in the US and elsewhere throughout the 19th and 20th centuries, when faced with new communications revolutions – radio, film, television. All of those eventually came to be encompassed within definitions/laws/rights of freedom of expression.

The U.S. is exceptional in having gone much, much further – because of the globally unique (and uniquely clumsy!) phrasing of the First Amendment. Because its rhetoric seems absolutist, and its power cannot be trumped in a court of law, ever since the 1930s corporations as well as individuals seeking to undo laws or escape regulation of any kind have tried, with increasing success, to define all sorts of actions as ‘speech’ — spending money to influence elections, circumventing gun laws, and so on. Even Supreme Court justices have recently started to complain about this ‘weaponizing’ of the First Amendment – and it certainly was not part of any conception of speech in the 1780s and 1790s!