Professor Svetozar Minkov, Roosevelt University
“Freedom of speech, or of the press” is one of the very first rights established in the Bill of Rights. It has an aura of elementary self-evidence. But the Bill of Rights does not make an argument for such a freedom—it just asserts its desirability: “Congress shall make no law…abridging” it—and the centuries-old legal history concerning the right to free speech may not have made the basis of that the right any clearer.
If we go back to June 12, 1777, we find, in section 12 of the Virginia Declaration of Rights, a reason for the protection of free speech: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.” Freedom of the press is instrumental: it provide protection of political liberty. While it is a liberty itself, it is not necessarily valuable in itself.
But even if we accept the defense of liberty against despotism as the function of freedom of the press, we still do not have an understanding of the precise extent and meaning of this freedom.
To arrive at such an understanding, we also need to address the following questions:
- Is freedom of speech only a freedom to speak the truth, inasmuch as one knows it, or at least to engage in speech that has “serious literary, artistic, political or scientific value”? Or is it to say anything whatsoever? Is the right to free expression an absolute one—and every honestly and dishonestly held conviction may be expressed, as long as we allow others to do the same—or is it prudential, conditional, or circumstantial?
- If freedom of speech is to be reserved for only speaking the truth, does it require censorship?
- Do we hold freedom of speech sacred (only) because of the unpalatable character of its opposite, i.e. censorship, or is there a positive justification for it?
- Are there differences among freedom of speech, freedom of discussion, and freedom of expression?
- Is the basic premise of the case for free speech that freedom of thought (and its subsequent expression) fulfills the needs of society—that science and society are friends? Is this a valid premise?
Below you will find selections from John Milton, John Stuart Mill, and Benjamin Franklin that will help address these questions.
The most famous and most widely cited argument for freedom of speech, discussion, and expression is found in John Stuart Mill’s On Liberty (1859). Mill’s book is also the foundational theoretical document in many 20th century Supreme Court decision regarding freedom of speech. But the earliest modern  argument against censorship is found, not in Mill,
A “modern” argument marking the watershed moment between the era of censorship and book bans and the era of free speech.
but in John Milton’s Areopagitica (1608-1674). Milton argued against a 1643 licensing act of the Parliament of England, which allowed a certain kind of censorship.
Selections from Milton’s Areopagitica
Questions to consider while reading Milton:
- What is the basis of Milton’s argument against censorship?
- What does censorship/freedom of the press have to do with religious tolerance and religious truth?
I deny not, but that it is of greatest concernment in the Church and Commonwealth, to have a vigilant eye how Books demean themselves as well as men;
This seems to prepare an argument for censorship and yet Milton does not go in that direction. Why not?
and thereafter to confine, imprison, and do sharpest justice on them as malefactors: For Books are not absolutely dead things, but doe contain a potencie of life in them to be as active as that soule was whose progeny they are; nay they do preserve as in a violl the purest efficacie and extraction of that living intellect that
bred them. I know they are as lively, and as vigorously productive, as those fabulous Dragons teeth; and being sown up and down, may chance to spring up armed me. And yet on the other hand, unlesse warinesse be us’d, as good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God, as it were in the eye.
This may be a strong argument against destroying good books, but what about destroying bad books?
Many a man lives a burden to the Earth; but a good Booke is the pretious life-blood of a master spirit, imbalm’d and treasur’d up on purpose to a life beyond life….
…. I could recount what I have seen and heard in other Countries, where this kind of inquisition tyrannizes; when I have sat among their lerned men, for that honor I had, and been counted happy to be born in such a place of Philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which lerning amongst them was brought; that this was it which had damped the glory of Italian wits; that nothing had been there written now these many years but flattery and fustian.
Fantasy and pomposity.
There it was that I found and visited the famous Galileo grown old, a prisoner
Does the example of Galileo suggest that freedom of speech is a prerequisite for scientific progress?
to the Inquisition, for thinking in Astronomy otherwise than the Franciscan and Dominican licencers thought. And though I knew that England then was groaning loudest under the Prelaticall yoke, nevertheless I took it as a pledge of future
Contrary to what certain continental Europeans thought, England did not have religious and hence political freedom in the first half of the 17th century.
happiness, that other Nations were so persuaded of her liberty….
… Well knows he who uses to consider, that our faith and knowledge thrives by exercise, as well as our limbs and complexion. Truth is compar’d in Scripture to a streaming fountain; if her waters flow not in a perpetual progression, they sick’n into a muddy pool of conformity and tradition.
Compare this argument of Milton to Mill’s fundamental argument about allowing freedom of expression to all opinions?
A man may be a heretick in the truth; and if he beleeve things only because his Pastor sayes so, or the Assembly sodetermins, without knowing other reason, though his belief be true, yet the very truth he holds, becomes his heresie ….
How does a true statement which accepts blindly become a heresy?
…. And now the time in special is, by privilege to write and speak what may help to the further discussing of matters in agitation. The temple of Janus with his two controversal faces might now not unsignificantly be set open. And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the worse, in a free and open encounter. Her confuting is the best and surest suppressing.
But, of course, if truth is indeed truth, it will never be confuted or refuted.
Selections from Mill’s On Liberty
Questions to consider while reading Mill:
- What is the justification for freedom of speech?
- Is only speech that contributes to the discovery of truth or to progress protected?
- Even if freedom of speech leads to chaos, shouldn’t that chaos be tolerated as a stage in an overall progressive movement?
- What is more dangerous—scientific truths that come to light or false opinions that get air time?
- Does Mill apply the standard of “serious literary, artistic, political, or scientific value” in restricting or allowing freedom of speech?
John Stuart Mill
Chapter II, “Of Liberty of Thought and Discussion”
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who
If suppressing an opinion only hurt the dissenter, the question of free speech would become a matter of calculating how many are helped and how many hurt. But Mill argues that all humanity, present or future, is harmed to some extent if an opinion is suppressed, whether it be true, half-true or wholly false.
dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error….
…We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.
A paradox: freedom of speech is for the sake of progress and attaining better understanding, but the results of that progress can never be defended by law against the now-refuted false opinions.
When we consider either the history of opinion, or the ordinary conduct of human life, to what is it to be ascribed that the one and the other are no worse than they are? Not certainly to the inherent force of the human understanding; for, on any matter not self-evident, there are ninety-nine persons totally incapable of judging of it, for one who is capable; and the capacity of the hundredth person
Mill does not seem to think very highly of the ordinary human capacities, but his solution is to allow these fallible human beings to discuss among each other? Is it reasonable to expect a rational outcome from a discussion among irrational individuals?
is only comparative; for the majority of the eminent men of every past generation held many opinions now known to be erroneous, and did or approved numerous things which no one will now justify. Why is it, then, that there is on the whole a preponderance among mankind of rational opinions and rational conduct? If there really is this preponderance—which there must be, unless human affairs are, and have always been, in an almost desperate state—it is owing to a quality of the human mind, the source of everything respectable in man either as an intellectual or as a moral being, namely, that his errors are corrigible. He is capable of rectifying his mistakes, by discussion and experience. Not by experience alone. There must be discussion, to show how experience is to be interpreted. Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it. Very few facts are able to tell their own story, without comments to bring out their meaning. The whole strength and value, then, of human judgment, depending on the one property, that it can be set right when it is wrong, reliance can be placed on it only when the means of setting it right are kept constantly at hand. In the case of any person whose judgment is really deserving of confidence, how has it become so? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and expound to himself, and upon occasion to others, the fallacy of what was fallacious. Because he has felt, that the only way in which a human being can make some approach to knowing the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be looked at by every character of mind. No wise man ever acquired his wisdom in any mode but this; nor is it in the nature of human intellect to become wise in any other manner. The steady habit of correcting and completing his own opinion by collating it with those of others, so far from causing doubt and hesitation in carrying it into practice, is the only stable foundation for a just reliance on it: for, being cognisant of all that can, at least
Is it psychologically plausible that the constant challenging of one’s fundamental opinions will not cause doubt and hesitation?
obviously, be said against him, and having taken up his position against all gainsayers—knowing that he has sought for objections and difficulties, instead of avoiding them, and has shut out no light which can be thrown upon the subject from any quarter—he has a right to think his judgment better than that of any person, or any multitude, who have not gone through a similar process.
It is not too much to require that what the wisest of mankind, those who are best entitled to trust their own judgment, find necessary to warrant their relying on it, should be submitted to by that miscellaneous collection of a few wise and many foolish individuals, called the public. The most intolerant of churches, the Roman Catholic Church, even at the canonisation of a saint, admits, and listens patiently to, a “devil’s advocate.” The holiest of men, it appears, cannot be admitted to posthumous honours, until all that the devil could say against him is known and weighed. If even the Newtonian philosophy were not permitted to be questioned, mankind could not feel as complete assurance of its truth as they now do.
About 150 years after its introduction, should Newtonian philosophy be beyond questioning when Mill writes this?
The beliefs which we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded. If the challenge is not accepted, or is accepted and the attempt fails, we are far enough from certainty still; but we have done the best that the existing state of human reason admits of; we have neglected nothing that could give the truth a chance of reaching us: if the lists are kept open, we may hope that if there be a better truth, it will be found when the human mind is capable of receiving it; and in the meantime we may rely on having attained such approach to truth, as is possible in our own day. This is the amount of certainty attainable by a fallible being, and this the sole way of attaining it.
Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being “pushed to an extreme;” not seeing that unless the reasons are good for an extreme case, they are not good for any case.
Is this valid reasoning? Can’t a drug, for example, work for a case of moderate but not extreme severity?
A Selection from Franklin’s Account of the Supremest Court of Judicature in Pennsylvania
Thomas Jefferson famously changed his mind about the reliability and rationality of a free press. In a January 16, 1787 letter to Edward Carrington, he expresses the hope that newspapers “should penetrate the whole mass of the people” and asserts that “were it left to [him] to decide whether we should have a government without newspapers, or newspapers without a government, [he] should not hesitate a moment to prefer the latter.” But in June 14, 1807, in a letter to John Norvell, Jefferson remarked that “Truth itself becomes suspicious by being put into that polluted vehicle [the newspaper]” and remarked that a paper devoted to “true facts & sound principles only…would find few subscribers.” 
Does this bear a resemblance to Franklin’s view below?
Benjamin Franklin did not experience such a swing in his estimation of the free press. While always a staunch advocate of a free press, and famously himself a printer, Franklin never had Jefferson’s high hopes for the press and hence did not suffer Jefferson’s disappointment.
Questions to consider while reading Franklin:
- What is Franklin’s tone in the piece and what is the purpose of his adoption of that tone?
- Franklin’s suggestion that the liberty of the press be counterbalanced by the “liberty of the cudgel” appears to be clothed in sarcasm. But what is the serious intent behind it?
- If Franklin is skeptical about the rationality of the press, about its ability to limit itself to the unbiased truth, and about the motivations of its audience, why does he not propose censorship?
Perhaps because the censors themselves would need to be censored. Consider Milton’s question: “how shall the licencers themselves be confided in, unless we can confer upon them, or they assume to themselves above all others in the Land, the grace of infallibility, and uncorruptedness?”
- How does Franklin’s understanding of freedom of discussion differ from Mill’s?
An Account of the Supremest Court of Judicature in Pennsylvania, viz., The Court of the Press (September 12, 1789)
….Whoever feels pain in hearing a good character of his neighbour, will feel a pleasure in the reverse. And of those who, despairing to rise into distinction by their virtues, are happy if others can be depressed to a level with themselves…
Franklin exposes the seamy side of our interest in the papers. This might be true of the National Geographic, but is the same motive behind our interest in the New York Times?
Of the Checks proper to be established against the Abuse of Power in these Courts.
Hitherto there are none. But since so much has been written and published on the federal Constitution, and the necessity of checks in all other parts of good government has been so clearly and learnedly explained, I find myself so far enlightened as to suspect some check may be proper in this part also; but I have been at a loss to imagine any that may not be construed an infringement of the sacred liberty of the press.
Is Franklin mocking the sacredness of the right while admitting that freedom of the press is better than the alternative?
At length, however, I think I have found one that, instead of diminishing general liberty, shall augment it; which is, by restoring to the people a species of liberty, of which they have been deprived by our laws, I mean the liberty of the cudgel. In the rude state of society prior to the existence of laws, if one man gave another ill
Doesn’t Franklin make it clear here that his recommendation of the “cudgel” does not apply in less “rude” state of society where there is a rule of law?
language, the affronted person would return it by a box on the ear, and, if repeated, by a good drubbing; and this without offending against any law. But now the right of making such returns is denied, and they are punished as breaches of the peace; while the right of abusing seems to remain in full force, the laws made against it being rendered ineffectual by the liberty of the press.
Franklin seems to say that the abuses of the press are essential to the liberty of the press.
My proposal then is, to leave the liberty of the press untouched, to be exercised in its full extent, force, and vigor; but to permit the liberty of the cudgel to go with it pari passu.
At the same time and at the same rate.
Thus, my fellow-citizens, if an impudent writer attacks your reputation, dearer to you perhaps than your life, and puts his name to the charge, you may go to him as openly and break his head. If he conceals himself behind the printer, and you can nevertheless discover who he is, you may in like manner way-lay him in the night, attack him behind, and give him a good drubbing. Thus far goes my project as to private resentment and retribution. But if the public should ever happen to be affronted, as it ought to be, with the conduct of such writers, I would not advise proceeding immediately to these extremities; but that we should in moderation content ourselves with tarring and feathering, and tossing them in a blanket.
This is clearly an image. What then is the non-metaphorical suggestion Franklin is making about handling libellous publications?
If, however, it should be thought that this proposal of mine may disturb the public peace, I would then humbly recommend to our legislators to take up the consideration of both liberties, that of the press, and that of the cudgel, and by an explicit law mark their extent and limits; and, at the same time that they secure the person of a citizen from assaults, they would likewise provide for the security of his reputation.
Franklin’s prose, dripping with irony, is conspicuously pointing to another kind of problem as his proposal is surely made in jest. But what is the problem to which Franklin is playfully pointing and what approach to that problem is Franklin seriously recommending?
- In conjunction with the due process clause of the 14th Amendment, in the 20th century the right to free speech was interpreteed as limiting the power of the states, in addition to limiting Congress. ↵
- In 1805, Alexander Hamilton’s persuaded the New York state legislature that truth-speaking or truth-seeking can be a defense against libel charges. ↵
- The landmark 1973 Supreme Court obscenity case Miller v. California. ↵
- James Madison, in a 1799 address to the General Assembly of Virginia, argued that making “a distinction between the freedom and the licentiousness of the press” is “only a new mode of claiming absolute power over the press.” ↵
- Earlier but less famous absolutist defense of freedom of speech are Thomas Cooper’s “Of the Propriety and Expediency of Unlimited Inquiry” (1800) and Francis Ludlow Holt’s “Of the Liberty of the Press” (1818). ↵
- For a rich collection of censorship and information control, see https://voices.uchicago.edu/censorship/gallery/. ↵
- Milton’s text below has been slightly modernized. ↵
- John Locke’s 1689 Letter Concerning Toleration, which does not contain a direct argument for freedom of speech, likewise concerns itself with preventing the suppression of religious opinions. It is not an accident, then, that the First Amendment pairs freedom of speech with freedom of religion. See Jefferson’s “Kentucky Resolutions of 1798”: the First Amendment guards “in the same sentence, and under the same words, the freedom of religion, speech, and of the press; insomuch, that whatever violates either throws down the sanctuary which covers the others.” ↵
- Elsewhere in the Areopagitica, Milton remarks: “These are the fruits which a dull ease and cessation of our knowledge will bring forth among the people. How goodly, and how to be wished were such an obedient unanimity as this, what a fine conformity would it starch us all into? doubtless a stanch and solid piece of frame-work, as any January could freeze together.” ↵
- While On Liberty has become a fundamental book for all democracies, and it was a book for which Mill hoped he will be remembered, Mill also hoped to be remembered for his System of Logic (originally published in 1843, but republished in Mill’s lifetime through 1872), in which he expresses a very different view: one of the foundations of society is the feeling “that there be in the constitution of the state something which is settled, something permanent, and not to be questioned….something which people agreed in holding sacred…which…was in the common estimation beyond discussion…” And “when the questioning of these fundamental principles is (not the occasional disease or salutary medicine, but) the habitual condition of the body politic…the state is virtually in a position of civil war.” ↵
- But see Jefferson’s more Franklinian Second Inaugural Address (“If there still be improprieties which this rule [that press needs only the restraint of truth] would not restrain, its supplement must be sought in the censorship of public opinion” and the April 19, 1814 letter to Dufief (“Whose foot is to be the measure to which ours are all to be cut and stretched?”). ↵