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Freedom of Expression: History

Evolutionary scientists have identified that the most distinguishing feature of human beings (Homo sapiens) is their capacity for complex language, although it is still not clear when this capacity developed (theories about the emergence of spoken language range from 100,000 to over one million years ago). The development of the first written language is better understood. Written language emerged in the fourth millennium BC (4000–3000 BC), with the first known examples being Sumerian, which was a cuneiform (pictographic) language used in southern Mesopotamia, and Egyptian hieroglyphics. Both written languages coincide with the rise of the earliest human civilizations.

Over time, opposing forces arose: the need to express ideas and opinions in written form, and the desire by some to control free expression. Thus, the Greek epic poet Homer (ninth or eighth century BC) supported free expression, but Solon (630–560 BC), the first great lawmaker of Athens, banned "speaking evil against the living and the dead." Pericles, the leader of democratic Athens, extolled freedom of speech as the defining distinction between the rival city-states of Athens and Sparta. Nonetheless, after the Peloponnesian Wars, the Athenian Assembly ordered Socrates to drink poison as punishment for lecturing about unrecognized gods and corrupting youth by encouraging them to question authority.



Galileo

Copernicus and Galileo vs. the Vatican

Until the Enlightenment (17th and 18th centuries in Europe), censorship was the dominant practice of governments. Autocrats generally forbade any questioning of their right to rule, their policies, or their behavior. In mid-15th-century Europe, Johannes Gutenberg's introduction of the printing press with movable type allowed for the mass production of books and thus made greater the need for the imposition of control.

In turn, the Vatican became the main enforcer of censorship. The Catholic Church's 1559 Congregation of the Index was a long list of banned books that hinted of heresy. One of the censored books was Nicolaus Copernicus's De revolutionibis orbium coelestium (1543), which went beyond what was permitted in terms of hypothesizing and directly challenged the Church's belief in a stationary earth. The great scientist Galileo Galilei (1564–1642) was sentenced to life in prison because he confirmed Copernicus's theories of planetary motion around the sun. Galileo's sentence was commuted to house arrest without visitors only when he knelt before the pope to recant his belief in Copernican theory. Galileo's punishment, his forced recantation, and the banning of his books had an even greater impact than the censorship of De revolutionibis in dampening scientific inquiry and discovery for a century.

The Star Chamber

During the Reformation, monarchs who broke from the Vatican's control themselves found a need for censorship. In this regard, the struggles brought about by the Reformation in Great Britain had an enormous influence on the eventual development of freedom of expression. Henry VIII and his daughter Elizabeth I—both of whom were in conflict with the Vatican—banned books that were opposed to the new national Church of England and invoked the Court of Star Chamber (the court that supplemented the regular English Courts) to repress "slander." Elizabeth I also directed the "Master of the Revels," whose primary responsibility was to censor public presentations. Among the most famous acts of censorship under Elizabeth I was her order to eliminate the abdication and assassination scene in William Shakespeare's Richard II because it seemed to invite comparison between her and the weak Richard II (arguably, Elizabeth did not misinterpret—the play was used to try to mobilize support for the Earl of Essex's failed coup attempt). Under the Catholic Stuart dynasty, the Court of the Star Chamber was used to suppress political dissent and to control the licensing of printers. After Charles I raised an army against Parliament, it abolished the Star Chamber in 1637. But Parliament reinstituted press controls through the Licensing Act of 1643, which imposed strict restrictions on the content of published materials.

Milton's Areopagitica: Truth Emerges Through Free Expression

In this context of state intrigue and civil war, John Milton wrote perhaps the most famous defense of free expression ever written: the political essay Areopagitica (1644). His main argument against the adoption of the Licensing Act and for unfettered licensing was a new one at the time but today is basic to our understanding of freedom of expression: that "truth is most likely to emerge in a free and open encounter." The argument was rejected at the time, but the Licensing Act was eventually abolished in the wake of the 1688 Glorious Revolution, which brought Mary II and William III to power with the requirement that they adhere to the Bill of Rights. Censorship by royal fiat continued, but "unfettered licensing" initiated England's tradition of a free and freewheeling media. Milton's Areopagitica, despite its complexity, became the touchstone for a libertarian view on freedom of expression and greatly influenced the liberal tradition in the United Kingdom, the United States, and throughout the British Empire. It remains the core text for free speech advocates.

John Milton wrote perhaps the most famous defense of free expression ever written: the political essay
Areopagitica (1644).

The Enlightenment: A Primary Objective

Freedom of expression became a primary objective for Enlightenment thinkers as a measure of liberal progress. In Europe, Sweden was the first country to abolish censorship in 1766, followed quickly by Denmark and Norway in 1770. Reflecting the egalitarian spirit of its revolution, the French National Assembly's Declaration of the Rights of Man in 1789 included not only the right to free expression, but also the right to own a printing press. In the American colonies, one of the colonists' main complaints was press censorship by the English king. After the American Revolution, the U.S. Constitution's First Amendment, adopted in 1791, established one of the strongest standards for the guarantee of free speech by any constitution: "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."

The U.S. Supreme Court: Expanding Standards of Free Expression

The evolution of standards for freedom of expression in democracies has tended toward the expansion of freedom and the reduction of restrictions on the media. In the United States, U.S. Supreme Court decisions have reflected this trend. Traditionally, slander and national security laws were common justifications for restricting speech. While each area had legitimate claims for limiting speech, they were also easily abused. In The York Times v. Sullivan (1964), the Supreme Court reversed an earlier ruling in favor of a Montgomery city commissioner who had sued the newspaper over an advertisement made by civil rights leaders that appeared in it. Southern public figures had sued northern newspapers in a generally successful strategy to deter coverage of the civil rights movement. In this case, the Supreme Court majority determined that slander, especially regarding a public figure, required proof of intent of "actual malice," prior knowledge of a claim's falsehood, or "reckless disregard" for the truth.



A demonstration demanding police action against child porn sites instead of censorship of the Internet

Until 1969, the U.S. Supreme Court also generally upheld public and national security laws restricting speech. In Schenck v. United States (1919), Oliver Wendell Holmes wrote his famous opinion, which argued, "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." His opinion established an open-ended "clear and present danger" standard for evaluating the legitimacy of national or public security claims. The question, of course, lay in the meaning of clear and present danger. In Schenck, the plaintiff, Charles Schenck, a leader of the U.S. Socialist Party, was convicted for distributing leaflets calling for World War I draftees to oppose the draft.

In Yates v. United States (1957), the Court reversed numerous convictions based on the Smith Act, a law outlawing revolutionary political movements, asserting that there must be a distinction between teaching or expressing the idea of overthrowing the government and acting on the idea. The Smith Act was more specifically overturned in Brandenberg v. Ohio (1969), in response to a television news broadcast of a Ku Klux Klan rally that included explicit threats of violence against Jews and blacks. The Supreme Court decided that the notion of "clear and present danger" was insufficiently vague as a standard, and that speech could not be "prohibited, punished, or prevented" except where advocacy of specific lawlessness had the likelihood of producing "imminent lawless action."

The Supreme Court decided that the notion of "clear and present danger" was insufficiently vague as a standard.

In the famous Pentagon Papers case, ending in the decision New York Times Company v. United States (1971), the Court established an even higher standard—a "heavy burden of proof"—for any government restriction of the First Amendment. All of these rulings greatly expanded protections for the media, reinforced the importance of freedom of speech as an essential element in free societies, and made clear that restraints on freedom threatened the country's democratic foundations.

Totalitarianism: "Truth Is the Mortal Enemy"

The rise of totalitarian regimes in the 20th century had an opposite dynamic: eradicating all freedom. Totalitarian regimes took complete control of the media, making it into an instrument for conveying state ideology, and attempting to control thought and conscience through propaganda and the intimidation of deviant or dissenting views and opinions. Indeed, such regimes moved immediately to control expression upon seizing power.

In the earliest days of the Russian Revolution, for example, the Bolsheviks imposed censorship, using tactics such as destroying the presses of political rivals and destroying private ("bourgeois") libraries. The Bolsheviks' leader, Vladimir Lenin (1870–1924), set the early direction of state propaganda in his famous maxim "A lie told often enough becomes the truth." Stalin further institutionalized censorship by establishing a state body to oversee censorship (called Glavlit in Russian) and the Writers Union (1932), which became the only legal union for writers. These actions by Stalin were instruments for directing every aspect of public expression and for establishing socialism as the only allowable ideology. In the terror under Stalin's rule (the height of repression lasted from the late 1920s to the late 1930s), thousands of writers, journalists, and artists who refused this straitjacket found themselves in prison camps and even graves.

Upon taking power in Germany, Hitler appointed Joseph Goebbels (1897–1945) as director of propaganda. One of Goebbels's first acts was to incite anti-Semitism in the media. He also rallied support for a massive book burning on May 10, 1933, in Berlin to destroy "non-German" books. To note, the German poet Heinrich Heine argued in the 19th century, "Where books are burned, human beings are destined to be burned too." Goebbels's notion of the "big lie" defines the essence of totalitarian propaganda:

If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.

Totalitarianism vs. Free Thought

Within totalitarian regimes, one finds not just unimaginable suffering, but also remarkable profiles in courage of individuals who struggled to write freely and reveal the truth for the world and for history. Such courageous individuals include the Cuban author Reinaldo Arenas (1943–90), the Czech dissident Vaclav Havel (1936–), the Russian author of the 1973 The Gulag Archipelago, Alexander Solzhenitsyn (1918–), and many, many others. For these individuals, intellectual freedom could not be compromised because it meant compromising truth itself. Those who were imprisoned found ways both to write and to smuggle their works out of their countries, creating a distinct new form of literature called prison writing. Their pursuit of truth and their efforts to overcome censorship define the meaning of free expression.

Essential Principles II

Freedom of Expression: A Universal Standard

The apocalyptic destruction and murder carried out by Nazi Germany and other Axis powers caused the international community to create new institutions and instruments after the war to protect human rights and prevent a repeat of the war's atrocities. The UN's first act was to create the Human Rights Council, chaired by Eleanor Roosevelt. For democratic countries, free expression was among the primary goals of the new human rights regime. Article 19 of the Universal Declaration of Human Rights (1948) thus declares:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 19 vs. Public Order

Eleanor Roosevelt, one of the original founders of Freedom House, understood that not everyone in the council wanted clear declarations on human rights, most notably the Soviet Union. Its ambassador, Andrei Vyshinsky, had been Stalin's chief prosecutor during the Great Purges, which took place during the 1930s, and engaged in long-winded disputes with the council's chairwoman. While Roosevelt prevailed in establishing clearly defined and unqualified rights, subsequent documents, such as the International Covenants on Civil and Political Rights and on Social, Cultural, and Economic Rights, included qualifications for the temporary restriction of freedoms to preserve public order. While this qualification itself is highly circumscribed (and the council rejected it, for example, to justify the imposition of martial law in Poland), free speech organizations cite the Universal Declaration's Article 19 as the preeminent international claim for freedom of expression.

Freedom's Next Threat: "The New International Information Order"

Later, through the UN General Assembly and UNESCO (the United Nations Educational, Scientific, and Cultural Organization), the Soviet Union and many developing countries sought to establish a "New International Information Order" (NEIO), which would impose restrictions on the media to avoid unfavorable coverage of their countries. This attempt, among others undertaken by developing countries, was weakened when Western countries responded with threats to leave the UN system. Also, by the late 1980s, the main sponsor, the Soviet Union, was near the point of collapse. Still, there remains no clear mechanism within the United Nations human rights system for protecting free expression.

The Negative Balance of Dictatorship

The fights in the UN between developed and developing countries show that the international struggle for free expression is ongoing, and one that generally sets democracies apart from dictatorships. Many countries continue to impose censorship and propaganda regimes, from Burma, to China, to Sudan. A total of 63 countries are categorized as "not free" in Freedom House's Freedom of the Press 2007 survey. Some, like Belarus, Cuba, North Korea, and Turkmenistan, go so far as to propagate "cults of personalities," as occurred in previous totalitarian regimes, where public displays of adoration of the "leader" were a constant practice. In nationalist conflicts that emerged after the collapse of communism, the world witnessed another type of crime against intellectual freedom—the destruction of libraries. Serbian forces destroyed the national library in Bosnia, and the Russian army did the same in Chechnya, each an apparent attempt to wipe out national memories.

The fights in the UN between developed and developing countries show that the international struggle for free expression is ongoing, and one that generally sets democracies apart from dictatorships.

In the Middle East, some governments seek to disseminate messages against Israel and Western countries through the state-controlled media, which help to deflect attention from their domestic problems. A culture of intimidation is prevalent. Religious opinions (fatwas) are issued by both state (such as theocratic leaders in Iran) and nonstate religious and political movements (such as al-Qaeda) that sometimes threaten writers or broadcasters with death or violence for materials deemed blasphemous or insulting to Muslims. In a world where terrorism has become widespread, these threats place a chill on all forms of expression, which is, arguably, their aim.

The Positive Increase in Freedom

Freedom House's press survey also shows the converse picture, namely the significant increase in the number of countries that largely respect principles of free expression. Freedom House's Freedom of the Press 2007 survey classified 74 countries (38 percent of the total) as "free," whereas the Freedom of the Press 1997 survey classified only 64 countries as "free." Similarly, the internet has opened up a new means of communication and form of free expression for hundreds of millions of people. At the same time, unfree countries often prohibit access to the internet or censor certain websites.

Freedom vs. Restriction: The Debates Continue

Even in democracies, controversies still remain on the issue of freedom of expression. Not everyone in the United States agrees fully with the blanket libertarian view of the First Amendment or Milton's Areopagitica, especially given the increased threat of terrorism. In the United States, there is, in fact, an ongoing debate between the executive and judicial branches over the balance between national security and free expression. Other important debates continue over issues of obscenity, hate speech, political speech, intellectual property rights, and accountability of the media, among others.

But the main threats to freedom of expression are the restrictions placed on it by repressive governments and the ongoing ideological and physical attacks made on it by extremists. Dozens of reporters are killed each year by repressive governments and extremists. Such attacks were given religious encouragement through a fatwa to kill the novelist Salman Rushdie, issued by the Iranian leader Ayatollah Khomeini in 1989 in response to Rushdie's novel The Satanic Verses, which the clerics found insulting to Islam. The fatwah against Rushdie forced him into hiding abroad, although the Iranian government retracted its fatwah in 1998.

The 2002 assassination of Daniel Pearl, a reporter for the Wall Street Journal, by al-Qaeda operatives was further proof that freedom of expression has little protection in this area of the world. Overall, the climate of religious and political extremism in the Middle East has limited speech and ensured a limited debate about the region's future.

Freedom of expression empowers citizens through knowledge, opinion, and the possibility to gain their own voice.
The Meaning of the Cartoon Wars

The most significant recent challenge to freedom of expression was the worldwide reaction to the initial September 2006 publication of a cartoon that mocked the Prophet Muhammad in the Danish newspaper Jyllands-Posten.



Journalists working near soldiers in Nairobi during the December 2007 riots. Photo by Eleanor Marchant
Months later, violent demonstrations erupted across the Middle East. Public anger was aimed at Danish embassies, and Muslim leaders demanded that the prime minister of Denmark apologize for the publication of the cartoons and shut down the newspaper. Throughout the world, free speech organizations and some governments defended free expression, although a number of Western leaders criticized the Danish newspaper and called for an apology, believing that freedom of expression is a principle to be defended except when violent demonstrations are organized against it. In the end, the Danish paper issued an apology to defuse the international controversy, after an international boycott by Arab countries cost the Danish economy several billion dollars. The Danish prime minister decided not to take action against the paper, explaining that in free societies, free speech was too important to be interfered with by the state.

The essence of freedom of expression, of course, is not the right to insult the beliefs of others, but rather the freedom to report or convey facts, opinions, philosophies, and worldviews in an effective manner, using both objective and subjective means. Freedom of expression empowers citizens through knowledge, opinion, and the possibility to gain their own voice. Within democracies, free expression allows citizens to challenge political leaders, journalists to uncover information for the public, and the public to ensure the accountability of their government. Without the principles of a free media and free speech, there could be no self-government.