WHAT USE IS HISTORY IN THINKING about free speech in the present?
People tend to answer that question in two different ways — both of them wrong. One answer comes from those who look to the past to understand how we got to the present (that includes everyone from the ACLU, to Mark Zuckerberg, to most scholars of the First Amendment). They presume that, since the 18th-century Enlightenment, Western societies have progressed from censorship to ever greater freedom of expression. The American strand of this story is by far the most widely researched and celebrated. Its basic narrative is that the principles of modern free speech were implicit in the words of the First Amendment, drafted in 1789; that the Supreme Court has interpreted them with ever greater sophistication since it began seriously considering questions of free speech in 1919; and that those ideals remain true in our own time — even if the rise of social media has complicated their practical application.
The alternative answer, more recently advanced by some journalists and social scientists, is essentially that the internet has broken history — that the media revolution we are living through is so unprecedented that our existing principles of free speech can no longer cope, and need to be re-thought. A particularly influential and stimulating recent statement of this view is the Columbia law professor Tim Wu’s 2018 essay, “Is the First Amendment Obsolete?”, which argues that our existing free speech norms and laws were created "in a period, the twentieth century, when the political speech environment was markedly different than today’s," and are "increasingly obsolete" and "irrelevant" in the face of 21st-century information overload, trolling, and online disinformation.
As my talk will explain, this second approach is mistaken because the epistemological crisis we face today is by no means unprecedented: fake news, lies, slander, and the destabilizing impact of revolutionary new media were equally prominent problems around 1700, when free speech was first theorized. Meanwhile, the first approach, with its faith in ever-greater "freedom" (in a supposedly neutral "marketplace of ideas," from which autonomous individuals rationally assemble their views) misses the central point that who can speak, who gets heard, and who makes the rules about what one can say, has always been more about power than about truth, fairness, or rational debate. Since it was first coined, three hundred years ago, "free speech" has been a perennially weaponized slogan, mainly wielded by the powerful against the weak.
For all these reasons, the history of free speech has the potential to illuminate our current predicaments in surprisingly direct ways. My talk will illustrate this by focusing on the central, immovable problem at the heart of all modern American free speech debates: what does the First Amendment mean?
Of course, as everyone knows, it has no fixed meaning. What’s more, as Frederick Schauer once brilliantly pointed out, though legal doctrine and free speech theory have evolved elaborate rules to adjudicate speech-actions within the boundaries of the First Amendment, the location and shape of those boundaries themselves (i.e., what "speech" it is held to cover, and what not) is largely determined by extraneous political, economic, social, and cultural factors. At every level of analysis, it seems, the meaning of "Congress shall make no law abridging … the freedom of speech, or of the press" is simply a matter of changeable interpretation: it’s not determined by the words themselves.
That’s true, but it’s not the whole truth. I want to suggest that, at a deeper level, the Amendment’s particular phrasing is immensely consequential. For it has two features that are taken for granted, indeed celebrated, but whose genesis has never been adequately explained. The first is its rhetorical absolutism. Free speech shall not be abridged: no ifs or buts. (Of course, in practice the jurisprudence of free speech limits it in many ways: but my point is that the language is absolute, which allows its potential scope to be extraordinarily wide.) The second is its anti-governmental focus. Instead of declaring free speech to be a natural or positive right, the Constitution only prohibits its regulation by "Congress" (since 1925 the Supreme Court has decreed, just as James Madison had originally proposed, that this should include all inferior branches of government, too). Those two features give the First Amendment its intrinsic, distinctive shape — and profoundly determine its interpretation.
This is a uniquely American phenomenon. Even though liberty of press and speech have been just as prominently enshrined in hundreds of other constitutions around the world since the later 18th century, not a single non-American law has ever conceived of free speech in this way. Instead, laws outside the U.S. invariably balance the right to speak freely with the obligation to do so responsibly. As the French Declaration of the Rights of Man put it, also in 1789, ‘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’.
The idiosyncratic shape of the First Amendment did not originate with the Founders themselves. As is well known, that way of thinking about free speech had been invented a few decades earlier by two London journalists, Thomas Gordon and John Trenchard. Between 1720 and 1723 they published a series of newspaper columns that came to be known (on account of their pseudonym) as "Cato’s Letters." This much-reprinted collection of over 130 essays was among the most influential Anglo-American works of political theory of the eighteenth century. At its heart was a novel, unprecedented set of arguments about freedom of speech and the press. No one before "Cato" had ever put forward an entirely secular ideal of free speech, let alone made it the very foundation of all liberty. Here is the stirring opening of Cato’s first column on the subject, published exactly 300 years ago in February 1721:
Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech, which is the Right of every Man, as far as by it, he does not hurt or control the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.
This sacred Privilege is so essential to free Governments, that the Security of Property, and the Freedom of Speech, always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of the Nation, must begin by subduing the Freeness of Speech; a Thing terrible to Public Traitors.
It’s not often that one can date a major intellectual shift with such precision. But in this case, it is well established that a recognizably modern notion of political free speech emerged in England and its colonies earlier than anywhere else in the world, and that Cato’s was at once its first and most celebrated model. This "daring and well-developed theory of free speech," marvels the leading American historian of the subject, suddenly "burst upon the scene" like "a flashing star in an orthodox sky." Due to its scope, originality, and popularity, "no eighteenth-century work exerted more influence" on British and American ideas about freedom of speech and print. Though countless later writers tackled the topic, they all – whether agreeing or disagreeing – trailed in Cato’s wake. Until the publication of John Stuart Mill’s On Liberty in 1859, it was probably the most important Anglophone text on the subject.
Yet no one has ever sought to explain how two obscure polemicists in 1721 suddenly managed to invent an entirely new way of thinking about politics and public debate. Though the text and influence of Cato’s Letters have been much studied, surprisingly little is known about its authors and their original motives. When I set out to investigate them, my research uncovered an extraordinary tale of fake news, mercenary journalism, and brazen misinformation. It turns out that the peculiar ideal of free speech that the Founders of the United States so enthusiastically enshrined in their constitution was, unfortunately, based on a tissue of deliberate lies and misrepresentation. I look forward to sharing with you an outline of this secret history — and to pondering its implications for our own time.
Fara Dabhoiwala will appear at "The Secret History of the First Amendment," February 18, 5:00-6:30 pm.