The annaliste historian Fernand Braudel asserts that dealing with the concept of liberty, “in all its connotations including ‘taking liberties,’ ” is the distinguishing mark of western civilization, the socio-political problem that most persistently occurs from the fifth century to the present. The liberty to communicate, to impart and receive information of all kinds, is at the heart of the western idea of liberty. “This process has never been peaceful; yet it is one of the secrets that explains Europe’s progress” (Braudel 1993). The struggle for the practice of free “mass” communication begins with the emergence of newspapers in the seventeenth century, but the press freedoms gained over the next 300 years have been limited to print. Even in the west a media-blind right of free expression has never been established, and newer media from film through broadcasting and beyond have been subject to the imposition, or the attempted imposition, of specific controls.
Freedom of expression as a right was born in western Europe as a consequence of a desire to practice religion, within the bounds of Christianity, according to the dictates of one’s own conscience. The matter was not one of private thoughts and activities being policed. Rather, it was the making public of unorthodox opinions – the publishing of them – that was at issue. It was not that, for example, Galileo had privately observed proof of a heliocentric planetary system through his telescope in contradiction to the church’s teaching, but that he published his findings in Nuncius siderius, that caused him problems (Galilei 1980). The demand that publication in any form be permitted as a right received its first serious secular expression through the means of mass communication during the wars of religion between Protestant and Catholic in the early seventeenth century.
By then the ambiguities of the technology of the press were much in evidence. On the one hand, printing allowed for uncorrupted religious texts of the Bible and the Psalter and enabled authority more efficiently to communicate with its subjects; on the other hand, dissidents of all persuasions from heretics to astronomers could also use printing from type to promulgate their alternative views. Authority attempted to control the press to its own advantage with licensing systems of various degrees of sophistication. Monopolies of licensed printers were established and the physical presses were also licensed. The texts to be printed were further subjected to control via censorship procedures including vetting and registration. Despite all this, these censorship regimes were, as often as not, very leaky. Within a polity, unlicensed presses, being small enough to put on a handcart, were hard to discover and cross-border traffic in printed materials was equally difficult to monitor.
In 1644, during the English Civil War, the poet John Milton wrote an unlicensed pamphlet in praise of the then illegal procedure of divorce. After he was hauled before Parliament to explain himself, he published his defense, deliberately unlicensed: The Areopagitica: A speech of Mr. John Milton for the Liberty of UNLICENS’D PRINTING, to the PARLIAMENT OF ENGLAND. “Give me the liberty to know,” he wrote, “to utter, and to argue freely according to conscience above all liberties.” It was, he claimed, “as good almost kill a man as kill a good book” (Milton 1951). The Areopagitica was, however, no plea for unbridled free expression. Milton did not envisage, nor did the majority of those who succeeded him in holding free expression dear, a libertarian free-for-all. Necessary constraints upon expression would remain in place. The law would still move against those who directly harmed their neighbors by slanderous speech or libelous writing or printing. Expression deemed to jeopardize the safety of the state was still sedition, and unorthodox religious opinions publicly expressed were blasphemy. Obscenity, variously defined, was still forbidden. The penalties for these crimes and civil actions remained, often draconian and sometimes capital. What was new in the seventeenth century was the demand that the operation of control take place through legal procedures after the expression had been published and not by censorship before.
This essentially permissive interpretation became the basis of press freedom – liberty from what came to be known as “prior constraint.” In 1695, MP Edward Clarke, using arguments furnished by his friend the philosopher John Locke, spoke in the House of Commons against an attempt by the crown to restore the pre-Civil War censorship regime exactly along these lines: because of the general law, he claimed, specific legislation “for the restraint of printing” is “very needless” (Winston 2005). This became common law doctrine but was significantly a more limited approach than that which radical opinion was beginning to formulate. In 1720, the London journalists John Trenchard and Thomas Gordon, writing together under the pen-name “Cato,” argued for a more general right of free expression: “Freedom of speech . . . is the right of everyman, as far as by it he does not hurt or control the right of another; and this is the only check which it ought to suffer, the only bounds it ought to know” (Trenchard & Gordon 1995, letter 15). Such a broader principle, although still constrained by the injunction to do no harm, remained a matter of radical, if not revolutionary, demand, even where, as in Britain and its American colonies, the technical legal prohibition against prior constraint existed. Thus, although the British press was protected from censorship, the British stage, for example, was not. A court official, the lord chamberlain, was empowered by an act of 1737 to censor and license all public performances. This act was not abolished until 1968.
Despite the failure to establish a media-blind right of free expression, by the end of the eighteenth century the principle was being written into radical constitutions. Partially in Denmark in 1761 and more comprehensively in Sweden in 1766, right of free expression statutes were imposed on weak kings, albeit only to have them repealed when the kings in question died. Article XI of the Rights of Man and of the Citizen, passed in August 1789 at the outset of the French Revolution, finally makes the rhetoric of “Cato” into law: “The free communication of thoughts and opinions is one of the most precious of the rights of man. Every citizen can speak, write and publish freely, only to answer to an abuse of this liberty in a scheduled action at law.” Some three years later, this right was abruptly declared interdit by a new constitution. Free speech was over. Longest lived of these eighteenth-century statutory rights is the First Amendment of the constitution of the United States, adopted in 1791: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or of abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for the redress of grievances.” This is still in force.
Freedom Of Communication And Control Of Modern Media
With the coming of the new media of the twentieth century – cinema, radio, and television – the tendency was to follow the model of the stage rather than of the press. The cinema was seen simply as a mechanization of the theatre and therefore the usual range of prior constraints, the licensing of premises and of the films themselves, were put in place in essentially the same form in all western countries. Radio signals, unlike the press or cinemas, where a proliferation of publishers or sites could be established without overlap, demanded some form of centralized control if stations were not to interfere with each other. Moreover, the technology had emerged from naval experimentation and was initially of primarily military interest, another strong reason for state control. However, control of the infrastructure by the licensing of wavelengths did not automatically require further control of content. Yet control of content, as with the cinema, became the norm. All this was carried over into television, and various reasons were brought forward as to why what was “very needless” for the press was required by broadcasting.
The underlying justification for the specific content controls that emerged is that the liberty afforded the press is inappropriate to these newer media. These, it is held, are far too persuasive and pervasive not to need special constraints. However, it can be argued that the press in the eighteenth century, for example, when at least 13 million newspapers a year were sold in Britain, had significant penetration into what was a much smaller literate elite. Certainly nineteenth-century newspapers could bring down a government. Other arguments for the specific control of modern media, such as the fact that broadcasting enters the home and could therefore be an “unwanted guest,” are even less compelling. The reasoning that holds that the regulation of infrastructure tends to create monopolies that need content control is a self-fulfilling prophecy, because such technological considerations have all too often resulted in unnecessarily centralized systems, even at the beginning of radio. With the proliferation of channels and platforms in the twenty-first century, these arguments become irrelevant. It is anyway illogical in societies that have supposedly adopted free speech as a human right to then put in place specific controls because media have influence. This is in effect to make free expression consequent upon its ineffectiveness. An Edward Clarke might well be justified in arguing that such controls are “very needless” in an age of media abundance just as they were in an age of comparative media scarcity.
The contradiction between a fundamental right of expression and the control of specific media remains unaddressed. Article 10 of the European Convention on Human Rights (1950), for example, states in a fashion to be found widely repeated in both international declarations and national laws since World War II: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Yet this article goes on in overtly contradictory language to allow a state to require “the licensing of broadcasting, television or cinema entertainments” without specifically excluding content regulation by prior constraint (Anon. 1992). The conflict between basic principle and specific regulation can be seen as being at the heart of national broadcasting institutions such as the BBC, which exist in the crease between free expression and state control, exactly reflecting the confusions of Article 10 of the Convention. It is therefore still the case that filmmakers and broadcasters are subject to specific content regulation and licensing via the agency of statutory or quasi-statutory bodies, such as the Office of Communications (OFCOM) in the UK or the Federal Communications Commission (FCC) in the US, although these potentially overt censors are normally inhibited by the tradition of press freedom, despite the fact this does not apply and on occasion is ignored, albeit controversially. Moreover, it is not the case that new media – the Internet, say – are, because of their technological formation, automatically free of specific control either. Witness Google’s or Rupert Murdoch’s relationship with the Chinese authorities or the action of the Iranian government in denying access to certain sites. The systems for controlling the Internet are indeed leaky – but they exist and are in operation just as was the leaky system of controlling the press five centuries ago. And the controls constantly threaten to expand.
New Threats To Freedom Of Expression
Up to the present the concept of free expression has remained limited, constrained by general laws and the principle that expression shall cause no legally measurable harm; by the nature of the medium involved; and by the changing social determinants of what constitutes expression sanctioned by community standards. These last are, of course, fluid and change over time. Hence the concept of obscene expression moved radically in the twentieth century. In the secularized west, laws against blasphemy are to all intents and purposes dead letters. Conversely, specific prohibitions against, say, publishing the names of children involved in legal proceedings or of rape victims have been enacted.
This fluidity speaks to a more fundamental change as the west has become increasingly sensitized to the issue of human (and, it can be noted, even animal) rights in general. The old common law sense of “harm” being limited to demonstrable material damage is being rapidly amended to embrace nonmaterial damage, such as distress. At the same time the distinction between insult (which has no necessary harmful consequences) and incitement (which is designed exactly to produce such harm) is being eroded. Given the failure to establish a general right of free expression across all media, the new sensitivity to expanding the original concept of “hurt” to embrace an ever-greater degree of distress is a matter for concern. While obviously welcome in many ways, this growing sensitivity, and the changes it is bringing in train, have a chilling effect on the basic principle of free expression. It is a paradox that the test of the existence of free expression – that is, expression beyond upsetment but without some measure of demonstrable actual harm – has to be that society countenances it on occasion causing offense. If expression is never offensive, how can we be sure it is free?
Given that the principle of media-blind free expression has never been established, the moves toward controlling distressing speech, even if the anti-censorship mechanism of no prior constraint exists, has a chilling effect that might be considered threatening to the fundamental right. That this is underway at a time of extreme liberal community standards in certain areas, such as obscenity, is a further paradox. The liberalism of the one area of expression does not remove the threat of constraint to other, perhaps more significantly political, areas.
Alexander Hamilton, a Federalist father of the American constitution, had argued against the passage of the First Amendment that “whatever fine declarations may be inserted in any constitution . . . [Liberty of the Press] must altogether depend on public opinion, and on the general spirit of the people and of the Government,” and that this could not be written down. Without this support Hamilton felt constitutional guarantees were worthless. There are worrying signs that this “general spirit” is not what it was. For example, a survey conducted on the bicentennial of the First Amendment in 1991 found that a majority of Americans felt that First Amendment protections should be watered down. Editorializing during a political campaign should not be automatically protected; nor should the press be allowed special privileges in covering the sexual behavior of politicians or publishing graphic photographs. Even the prohibition against prior constraint should be abolished for the reporting of security matters. Those surveyed “displayed an alarming willingness to remove legal protection from forms of free expression they merely disagreed with or found offensive” (Wyatt 1991). However much public appetite for sexual explicitness in expression drives the western media market, such a lack of an underlying appreciation of the principle of free expression, as well as the inappropriateness (as it might be argued) of continued media-specific content controls in an age of information abundance, are worrying signs that a four-century march toward establishing free expression as a general human right is in danger of being halted.
Hamilton’s essential point should not be forgotten: freedom of communication depends on the “general spirit”; technology, even global twenty-first-century computer-based networks, however sophisticated, can never be more than a necessary condition of free communication. It cannot, of itself, guarantee free communication, whose efficacy as an agent of freedom still depends more on societal forces than on technological wherewithal.
- (Directorate of Human Rights) (1992). Human rights in international law. Strasbourg: Council of Europe Press.
- Braudel, F. (1993). A history of civilisations (trans. R. Mayne). Harmondsworth: Penguin. (Original work published 1987).
- Galilei, G. (1980). Selected works (trans. S. Drake). Oxford: Oxford University Press.
- Milton, J. (1951). “Areopagitica” and “Of education.” Northbrook, IL: AHM. (Original work published 1644).
- Trenchard, J., & Gordon, T. (1995). Cato’s letters: Essays on liberty, 2 vols (ed. R. Hamowy). Indianopolis: Liberty Fund. (Original work published 1720).
- Winston, B. (2005). Messages: Free expression media and the west from Gutenberg to Google. London: Routledge.
- Wyatt, Robert O. (1991). Free expression and the American public: A survey commemorating the 200th anniversary of the First Amendment. Washington, DC: American Society of Newspaper Editors.