Yellow Plastic Adhesive Tape Long Stripes Isolated on White Background Directly Above View, Clipping Path.

Rethinking “free speech”

Censorship is not only desirable but necessary if a democratic society and its laws are to function correctly

This article is taken from the July 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

No idea is more loathed today, especially on the Right (how times change), than censorship. Nothing is worse, we are told, than being “censorious”, and seeking to end “vigorous debate” in the “marketplace of ideas”. But what exactly ensures that a debate is vigorous, keeps speech free and prevents a monopoly forming in the ideological marketplace? 

Ironically, given the question involves free speech, the reason for censorship being a “boo” word is never much debated or clarified. Even the “censorious Left” is reluctant to explicitly defend censorship, falling back on the assertion that of course free speech cannot extend to bigotry (or “hate speech” as it is now termed). Or we’re informed that free speech doesn’t mean freedom from criticism, or the right to a platform. 

Passed over is the actual good that speaking freely brings. Personal autonomy, freedom from restraint and the limiting of state power over individual choice are taken as morally self-evident, and the good and evil of speech is framed in terms of whether it infringes on or maximises the freedoms of others. 

In contrast, the classical idea of freedom involved a sense of freedom directed towards a telos — an ultimate purpose and destiny. It involved liberation from material necessity and sufficient leisure and education to participate in public life and duties. This ranged from military service, debating in public forums, voting on legislation, being elected or appointed to public office, and participating in religious and civic rituals. 

The philosophers valued this because it allowed the free citizen to pursue the good life of refined taste, high culture and a glorious reputation, but also the deeper goods of a virtuous life and rational inquiry into the nature of reality. 

Freedom is not passive

The difference between modern and ancient conceptions of freedom has been a theme of Anglo-Saxon philosophy since at least the nineteenth century, when Benjamin Constant wrote his essayThe Liberty of Ancients Compared with that of Moderns”. Constant noted that in large modern nations, liberty necessarily entailed the protection of private interests from state interference. A similar approach was taken by Isaiah Berlin, writing a century later, who described the difference in terms of positive versus negative liberty. Like Constant, he identified positive liberty as potentially dangerous and stresses the role of individual autonomy instead. 

Today, “negative liberty” (in the sense of individual autonomy) has been rendered into a positive ideal aggressively promoted in every sphere of life by force of both law and fashion. However, the question of liberty’s purpose cannot be evaded. 

So, if not individual autonomy and universal rights, what form should freedom of speech take? The answer can be put simply: censorship is necessary to secure liberty, and freedom of speech is meaningless without platforms and outlets for it. If free speech is redefined as a positive value (the freedom to seek the truth, the freedom to challenge authority responsibly, the freedom to participate in political life and debate) suddenly its form and bounds are illuminated in a single lightning stroke. 

Freedom is no passive state of nature: it is not the absence of coercion in relation to self-expression, an achieved situation, secured by institutions, ideas and traditions. It has to be modelled and embodied by individuals, and collectively lived out and passed on. Free speech in this sense is understood as the speech of a free people who freely choose and embody the moral and civic laws they obey — and not the freedom of speech itself. 

The greatest fear of philosophers like Socrates and Plato was that if speech (rather than people) was “free”, it would become sophistic — with words subject to distortion and manipulation, truth relativised, and ideas and principles bartered like goods in the marketplace. 

The influence of Christianity

Two factors combined to give free speech its special moral significance in Western societies

Two factors combined to give free speech its special moral significance in Western societies. One was the republican ideal of citizen participation. Free speech in this context is closely tied to deliberation and debate in the agora (the assembly); a legacy echoed by the tradition of parliamentary privilege, whereby MPs are uniquely immune from facing legal consequences for speech in parliament, including defamation. Negative liberty is certainly operative, but in the context of particular privileged spaces, it served the positive ends of liberty. 

The other factor, which gives us a more universalistic application than the aristocratic privilege of a minority, is the significance that Christianity gives to freedom of conscience and the sanctity of truth. Shaped by this legacy, we think of religion in terms of “belief” and “faith” — ideas we hold and must live by with integrity. 

As Christianity became a politically powerful religion, the question of faith through coercion had to be addressed. The eighth-century theologian Alcuin of York fiercely criticised his Emperor Charlemagne for seeking to force baptism on pagans: “Faith is a free act of the will, not a forced act. We must appeal to the conscience, not compel it by violence. You can force people to be baptised, but you cannot force them to believe.” This also applied to the Church’s role in secular life, with coercion considered grounds for the annulment of marriage. 

Acluin’s formulation of faith as a “free act of the will” was of no less central significance to Enlightenment critics of religious tests for office, most famously attacked by the Jewish philosopher, Moses Mendelssohn (the “German Socrates”), who wrote:

Brothers, if you care for true piety, let us not feign agreement, where diversity is evidently the plan and purpose of Providence. None of us thinks and feels exactly like his fellow man: why do we wish to deceive each other with delusive words?

Whereas diversity of religious views, the sanctity of truth and the ideal of friendship between different religious believers were well-explored ideas in mediaeval and renaissance thought (propounded by theologians and philosophers such as Nicholas of Cusa and Pico della Mirandola), the Enlightenment shifted the emphasis from the esoteric nature of truth to the idea of a naturally-revealed truth and religion. 

Freedom of speech and conscience had conventionally been premised on the related ideas that truth was both real and sacred, but equally not fully knowable to humans and only known truly by God. But in the rationalistic and naturalistic liberal vision of thinkers such as Moses Mendelssohn and Immanuel Kant, these freedoms were necessary because they reveal a truth that is self-evident to all reasoning people. Figures like Voltaire argued for freedom of speech not because they believe in pluralism, but because they thought that when external coercions and influences are removed, all rational people will tend to converge on the same conclusion.

“Marketplace of ideas”

These ideas dovetail neatly with classical liberal economics, which sees in the untrammelled workings of the “free market” much the same sort of quasi-providential working out of a rational order as is assigned to free speech. Instead of the mediaeval idea of the just price, which was maintained by moral, social and legal regulation, increasingly the minimally regulated price mechanism was seen as “natural”.

Thinkers such as John Locke, David Ricardo and Adam Smith saw supply and demand as a kind of natural law, and if only it was obeyed and allowed to freely operate, prosperity would follow. Where once the freedom of commercial exchange was embodied in particular bounded institutions — literal marketplaces subject to strong secular and religious regulation — it was now to be allowed to range freely in search of the “rational price” rather than the just one. 

In the same way, ideas are to be tested to destruction by freely competing in the unregulated “marketplace of ideas”, a phrase originating in Oliver Wendell Holmes’s opinion on Abrams v. United States:

The ultimate good desired is better reached by free trade in ideas … The best test of truth is the power of the 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.

Much like a free market in goods, however, the free market in ideas is given to capture by monopolies. Once the best concepts have triumphed in the marketplace of ideas, the natural endpoint is reached and pluralism gives way to conformity. Like the market in goods and services, it is subject to cycles of disruption, as new ideas emerge, but they are subject to the test of the marketplace where they either attain hegemonic status or are pushed to the margins. This is not a pluralistic vision; this is a system that rapidly achieves and enforces consensus. 

Thus the subordination of free speech to scientific expertise and egalitarian ideals is fully consistent with the idea of free speech as a process directed towards the creation of a perfect, rationally governed society that is self-evident to all. This model’s dominance is, however, relatively recent. Well into the twentieth century, those older, more mediaeval and renaissance ideas about truth, liberty and conscience remained a dominant strain in democratic societies, and were well embedded in institutions, custom and law. 

Ku Klux Klan

It was Oliver Wendell Holmes, and liberal justices like him, who were instrumental in defining freedom of speech in terms of a secular, individualistic marketplace. When he uttered his famous quote it was as part of a dissenting opinion. And the analogy to the free market was no loose metaphor, but reflected the case itself.

Abrams v. United States was a case in the US Supreme Court involving whether to uphold the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offence to “urge the curtailment of production of the materials necessary to wage the war against Germany with intent to hinder the progress of the war”. The appellants had earlier been found guilty of breaching the law on the basis of leaflets in English and Yiddish denouncing the decision to send troops to Russia, and calling for a halt in the production of weapons which they claimed would be used to crush the Bolshevik revolution in Russia. 

But Holmes disputed whether this apparently plain call for revolution and industrial sabotage merited prosecution under the law: “I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force.” Crucially, the crime of seditious libel aligned with the common law tradition that the United States inherited from Britain. 

It is notable that Holmes says next to nothing about the character of the men whose rights he claimed to be defending, unlike fellow justice Clark who had much to say on the subject — describing them as “intelligent”, with “considerable schooling”, that they had not sought to become citizens, and “had no interest whatever in the Government of the United States”. 

Clark takes the beliefs of the convicted men very seriously. In the classical tradition, the constitution of the state is defined not by a written document, but rather by the character of the ruling citizens. Clark is firmly grounded in that tradition of citizen liberty when he points to the men’s hostility to the state and lack of participation in its legitimate political life. For Clark the right to freedom of speech cannot cut off the branch upon which it is sitting; it cannot extend to calls for revolutionary violence. 

Clark’s view, however, went out of fashion, and by 1969 the case of Brandenburg v. Ohio effectively overturned the Court’s previous ruling, establishing that the common law crime of seditious libel was in fact constitutionally protected speech. The case involved Clarence Brandenburg, a Ku Klux Klan leader, who had been filmed at a rally at which crosses were burned, and speeches made calling for “revengeance” against blacks, Jews and the federal government, and proposing that ethnic minorities should be forcibly exiled to Africa. The Supreme Court overturned his conviction, and applied a new test to speech, effectively ruling out prosecution for anything short of an explicit and direct call for violence against a specific target. 

Free speech extended to porn

This development occurred around the same time as similar constitutional “evolutions” on freedom of speech involving the other great check on speech — obscenity laws. As with sedition, US law closely paralleled British judgments. American courts applied a version of the so-called “Hicklin Test”, from an 1868 British case involving an anti-Catholic pamphlet. The judgment defined obscenity as any material which tended “to deprave and corrupt those whose minds are open to such immoral influences”. 

The passage of the Comstock laws in America led to the British test being applied federally following an 1896 Supreme Court judgment. By 1957, this standard was overturned by Roth v. United States and replaced with a new formulation: “Whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest”. 

This opened the door to a relativism about obscenity

This opened the door to a relativism about obscenity, famously given voice by Supreme Court Justice Potter Stewart in 1964, “I shall not today attempt further to define the kinds of material I understand to be embraced … but I know it when I see it.”

This constitutional drift saw America shift from a country in 1900 where pornography was effectively banned, to one in which it was a multi-billion dollar industry consumed, regularly or occasionally, by much of the population. 

Yet at the same time that sedition and pornography were being brought under the mantle of free speech, other forms of expression were being excluded. In 1947 Everson v. Board of Education extended the separation of Church and State to individual states, an unprecedented measure, in a case involving the funding of religious schools. This aggressive secularisation by the judiciary continued, and in 1962, in the case of Engel v. Vitale, prayer in school was banned, bringing an end to state-funded religious education in America, a decision made not by America’s citizens, but by its unelected judges. 

In the Whig history of the American republic, the framers were aiming at a secular, permissive society, a noble experiment finally realised by crusading civil rights lawyers in the twentieth century, who constrained laws against sedition and obscenity, while banishing superstition and dogma from classrooms. But this privileges the past 80 years of US history over the prior 160.

Roman censorship 

America, like other western democracies, interpreted liberty not only through the rationalistic and progressive lens, but through a far older model of classical and Christian liberty. 

Though the modern elements are present from the beginning of the revolution, so are these more conservative traditions. John Adams saw it as axiomatic that:

 We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition, Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other. 

In this context, censorship is a vital tool for the maintenance of a democratic republic, because without it the very identity and ideals upon which freedom is built fall apart. Nor is censorship an authoritarian measure, but one central to the democratic process itself. 

In ancient Rome, the office of censor was one of the most important and respected roles in the Republic. They were responsible for maintaining regimen morum: regulating public morals. Far from being a symbol of tyrannical power, the censor was central to republican idealism. They were regarded as sacred figures, and unlike other high officials they had no lictors, the official bodyguards who were empowered to imprison and punish offenders. This reflected the fact that they lacked imperium — the coercive authority of the Roman state, possessed by generals, consuls and dictators — and instead asserted authority entirely through auctoritas. 

This latter idea was a non-coercive authority that means something like personal prestige, charisma and influence. This is the power not of punishment, but persuasion and tradition, a kind of moral authority. Censorship was abolished not by prototypical liberal democrats, but by dictator, aristocrat, and death-list publisher Sulla. 

The most important duty of the censor, and the reason they were not beloved of would-be warlords, was the maintenance of citizenship. This stems from their original duty, which gives them their name, the counting of citizens in the census. The punishments given by the censor were not primarily criminal. 

To citizens who had acted immorally, but not always criminally, they would add a nota censoria to their name in the census. This Mark of Cain would carry no formal punishment, but was rather what we would now call a conviction in the court of public opinion — a black mark for which forgiveness would have to be earned. More seriously, a censor could purge names from the ranks of equites and senators on the basis of failures of public conduct. 

Sophistry of the courts

Modern liberals tend to be aghast at censorship, but crucially, as in the original Roman model form, it puts public opinion and speech properly in the realm of politics, and locates it in formal political speech and debate. The US laws against obscenity and sedition that retrospectively horrify many today were made democratically — their merits were debated in public assemblies and legislatures, and restrictions might at any time be altered in those same bodies. However, they were overturned not in the court of public opinion, or by the people’s representatives, but rather by unelected courts. 

The courts acted not on the basis of open political and moral debate, but instead via often sophistic reinterpretations of long-established laws and precedents, with frequently veiled references to a supposedly changed public opinion that was at best guessed at and at worst lied about. 

Censorship serves a crucial and humanising purpose — it concentrates freedom of speech in specific institutions, and attaches it to concrete goals and ends. Unlike the disruptive, fragmenting and Darwinian marketplace of ideas, it punishes fraud and obscenity, defending the idealism of public discourse as a search for truth. It ensures that those with the most power and resources are not free to flout public morals, or undermine the common good. 

It is the absence, not the presence, of censorship that creates our “Orwellian” world

Creating an agreed standard of speech ensures that legal and moral speech is at least loosely aligned, such that to speak within the law is not a proper basis for informal punishment and exclusion. Whereas libertarianism creates a fearful anarchy and vigilantism, formal and open censorship is both democratic and moderate. Vitally, it authorises speech about speech and the limits of speech, and ensures our freedoms are justified in regard to socially useful and moral ends. 

Without censorship we find ourselves unable to define concepts such as offence, obscenity, violence, bias, slander, or sedition. Absent a shared language, we are left at the mercy of the majority. It is the absence, not the presence, of censorship that creates our “Orwellian” world in which language is increasingly reduced to a pure tool of power and domination. 

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover