Introduction: The Free Speech Rulebook

When we talk about "free speech", we are not referring to a tangible thing but to a set of rules implemented by human agreement. Free speech may be a matter of social convention, or law, and is usually both. In some circumstances, the laws and social conventions may line up with one another, while at other times they may conflict. For example, a benevolent monarch might permit a good deal of liberty, even though the laws of his country are very severe about dissent. Or a democracy with significant free speech protections may endure the spectacle of savage social harassment of dissenters-- something that has happened several times in this country and which we appear to be undergoing again today.

In the United States, the free speech "rulebook" was implemented by way of the First Amendment to the United States Constitution. In Britain, France, Canada, and elsewhere, it has been instituted in other ways. It is possible to trace through human history the formulation of the idea of free speech, the archetype that is, almost always, imperfectly adopted in national laws, constitutions, and social mores.

I am only beginning an investigation of the roots of the free speech rulebook in classical Greece. J.B. Bury ends his History of Greece with the words, "The republics of Greece had performed an imperishable work; they had shown mankind many things, and, above all, the most precious thing in the world, fearless freedom of thought." However, the idea of democracy, and that of free speech, though intimately interwoven, are not co-extensive. Democracy cannot exist without some freedom of speech but does not of necessity involve the complete rulebook. The reason is that government by the will of the majority, which was an epochal leap forward in human affairs, does not obviously guarantee the rights of the minority, which is a necessary feature of liberty of speech. For example, Socrates was voted to death by a majority of his peers for views that he held which were thought antithetical to Athenian democracy. Somewhere between the birth of democracy and the seventeenth century came the idea that the liberty of speech demands the protection of ideas found antithetical by the majority. I hope to track this concept back into classical Greece; if any reader can aid in the search, please email me at

The earliest complete statement of the absolute protection to be accorded controversial ideas that I have found in the minimal research I have conducted so far is in John Milton's Aeropagitica, the essay he wrote to persuade Parliament to rescind an order requiring the licensing of printing presses and of all books before publication. Milton said:

Read any books whatever come to thy hands, for thou art sufficient both to judge aright, and to examine each matter.... Prove all things, hold fast that which is good.... Bad meats will scarce breed good nourishment in the healthiest concoction; but herein the difference is of bad books, that they to a discreet and judicious reader serve in many respects to discover, to confute, to forewarn, and to illustrate.

The philosopher John Stuart Mill, in the equally eloquent language of a later England, elucidated the idea of the importance of unpopular speech in his essay On Liberty:

[T]he 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 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.

The United States prides itself on having made the world's most complete implementation of the free speech rulebook with the First Amendment to our Constitution, which says:

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.

Supreme Court Justice Oliver Wendell Holmes, among many other eloquently expressed insights, created what has become the operative metaphor of the free speech rulebook in the U.S., the "marketplace of ideas", in his dissent in Abrams v. U.S.:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-- that the best test of truth is is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.

Holmes, in his dissent in Gitlow v. U.S., recognized that the full implication of the free speech rulebook was to allow ideas to compete, no matter what the consequences:

If in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

These stirring quotes are both from dissenting opinions in cases in which the Supreme Court upheld the punishment of individuals for "unacceptable" ideas. While the U.S. has a noble conception of free speech, the rulebook is not commonly understood by ordinary people or even by our leaders. Every generation has seen ferocious attacks on freedom; the latest, and one of the gravest, is happening right now, with Congress' consideration of a law which will hamstring serious discourse on the Internet.

The free speech rulebook creates two levels of human thought and action: the popular level and the "rulebook" level. The popular level is the field on which ideas skirmish with one another. The rulebook level is the one on which "there is no such thing as a false idea," as the Supreme Court said in Gertz v. Robert Welch. The rulebook is the Marquess of Queensbury rules applied to speech instead of boxing; it is the official declaration that government must not reach down and push forward, or restrain, any of the players on the field.

Many categories of opinion, in fact, many words in our vocabulary, exist only on the popular and not on the rulebook level. Just as there is no definition of "art" we would care to have the government enforce, the rulebook does not take official notice of antithetical categories such as Marxism, cult religion, or speech about homosexual lifestyles. On the popular level, we may use phrases like "despicable", "sinful" or "deadly" to describe the speech we do not like, and speak against it at the top of our voices. But, if we love freedom of speech, we must recognize that it applies not only to our own expression but to the ideas we despise. In every area of human enterprise, there are huge gaps between ideas and their implementation, and the free speech rulebook is no different. Very few of us would object if the government banned the speech we most hate. The human temptation is always to elevate our personal battles of opinion to the level of the rulebook, and to rewrite the rulebook to create exceptions. For example, we will tolerate all speech against the government except that expressed by flag-burning.

Three of the major tenets of the free speech rulebook are humility, tolerance and optimism. Humility, the most unusual of human qualities, means the recognition that one's own opinions, no matter how strongly held, do not rise to the importance of universal laws and should not be forcibly imposed on others. It implies also a procedural recognition that many good ideas, probably including some you yourself hold, first emerged as unpopular and frightening minority viewpoints. (Any religion in which you believe fought a battle against its predecessor to survive.) Tolerance follows from humility; it means building legal structures to protect speech with which one does not agree--even speech with which one violently disagrees. Tolerance also means promoting social acceptance of radical ideas--not substantive agreement with the ideas but a procedural recognition that it is all right to disagree. After all, the free speech rulebook, as implemented by the First Amendment, only protects us against the government. Freedom from arrest and from prison may not mean very much if society is so rigid that the bearer of an unpopular idea will lose a job or be hounded from the neighborhood. The very people we rely on to report on and propagate new ideas may be afraid to do so, either because of social conditions or (even more dangerous to society) the stirring of commercial interests threatened by these ideas.

The moderates in both our political parties are perhaps the people who believe most in the free speech rulebook, while denizens of the extreme left and right are always the ones most willing to suspend it. I heard William Kunstler speak at Harvard Law School in the late '70's, and had the sad insight that this man, among the courageous defenders of the Bill of Rights in our lifetime, valued it only as a means to the victory of the ideas he espoused. If the revolution his clients predicted in the '60's had ever occurred, I am not certain that the Constitution would have had any meaning to him the day after. The free speech rulebook is not a Moses, guiding us to the Promised Land and conveniently fading away afterward; it is a permanent guide through a land of permanent progress. The rulebook assumes that, as long as there are humans, there will be new ideas for it to protect.

Though in the last fifty years we have spent most of our time in this country fearing the left, the end of the Soviet Union leaves us free to recognize that the greatest danger in the next fifty will be from the fundamentalisms of the right. I use this term broadly to include groups as disparate as the Algerian fundamentalists and the Christian Coalition in this country. All fundamentalisms are united by one strand: the idea that they are the bearers of absolute truth, and that law is the ideal tool for the enforcement of their particular morality. The concept that law and morality are perfectly coextensive is bubbling up again in this country. It is behind the scenes, in the Christian Coalition's disregard for the separation of church and state, in the desire to return official religion to the schools and turn this into a "Christian Nation". It is in the halls of Congress, where the Christian Coalition is extremely influential. The Internet indecency legislation is a first salvo, a shot acros the bows of free speech. Moderates in the Republican party call for a "big tent", encompassing a variety of viewpoints; the decisive and derisive reply from the right wing: "a big tent is for clowns." Translation: we don't need a free speech rulebook. We know what speech is good for you..

Optimism means having faith that the good ideas will succeed. Lacking this faith, one cannot support either free speech or democracy. Democracies have committed suicide; Hitler was democratically elected, and the fundamentalists in Algeria won an election a couple of years ago which the governing party illegally annulled rather than turning over power. In both cases, a plurality or majority voted for a party which would ensure that there were no more elections.

If you are not optimistic--if you believe that bad ideas will triumph, or that people are not able to govern themselves, two closely related ideas--then you are left with a strange choice: whether to kill democracy or free speech now, for fear it will kill itself later. Therefore, the only sensible approach may be to adopt an official optimism, to live as if good ideas and good people will triumph.

Particular danger areas--in a confrontation accelerated by the resurgence of fundamentalism in this country--are indecency and obscenity laws, and the trivial but powerfully symbolic issue of flag-burning. While examining these issues, I will also ask the question "Does free speech exist in the United States?" and will take a closer look at the role of optimism in the free speech rulebook. Finally, I plant myself at the feet of John Milton, echoing his "Prove all things, hold fast that which is good."