Chinese philosopher Confucius (551 – 479 BCE)
Freedom of religion, press, speech, petition and assembly are considered natural rights and the foundations of civilization. But how did this come about? In this brief section, we’ll quickly survey some of the ideas that influenced modern democracies.
In the first place, modern concepts of political freedom and personal liberty are not actually so modern after all. Ideas about tolerance for religious and political ideas have emerged throughout human history in many civilizations. Around 2,500 years ago, great ethical systems emphasizing religious freedom flourished in China, India and Greece. Religious tolerance also emerged in the Roman and Islamic empires.
“What you do not wish for yourself, do not do to others,” Chinese philosopher Confucius said around 500 BCE. The idea is found in many other ethical and religious traditions. Confucius also said: “A wise man does not promote a person for what he says, neither does he undervalue what is said because of the person who says it.” As Chinese law professor Gu Chunde noted: “From this we can see that Confucianism protects freedom of ideology and speech, allowing the independent existence of speech, whether it is right or wrong. It encourages people to criticize the government.”
There are many other examples. In India, around 256 BCE, King Ashoka promoted religious liberty with the idea that all religions desire self-control and purity of heart. From the US Library of Congress Ancient Manuscripts collection we find this statement from around by an Islamic scholar, Miraj al-Suud ila nayl Majlub al-Sudan: “The fundamental and original nature of humanity is that individuals are free.” And in the “classical” Greek and Roman empires, the struggle for freedom and democracy is well known in history.
Religious freedom was the first freedom
Printing accelerated religious conflict in Europe, beginning in the 1500s.
Religion is the first item in the First Amendment because it is so fundamental to human existence as expressing our highest values. Religion motivates great good, but the misinterpretation of religion can spur great evil.
When the America experiment began, Europe’s horrifying religious wars were still alive in human memory. So the idea of freedom of religion was not so much to protect Christianity as to keep people from fighting in the new world as they had in the old world.
Bitter fighting between millions of people broke out when the Catholic Church punished dissenters and heretics. These included Czech leaders Jan Huss (1371-1415) and John Prazsky (1379 – 1416), who were captured and executed by the church, and Martin Luther (1483-1546), who was never captured. Luther used the printing press to criticize the church by publishing his 95 Theses on Oct. 31, 1517, and everyone in Europe heard about it. Luther’s use of the new system of mass communication contributed to the massive revolt that we now call the Protestant Reformation.
The Reformation took shape across Europe, especially Denmark, Switzerland, Sweden and parts of Germany, all of which broke away from the Catholic Church of Rome and adopted Lutheranism or Calvinism. The church fought back with the Counter Reformation. Today these massive conflicts are collectively known as the European Wars of Religion. An estimated four to twelve million people, or sixty percent of the population in some areas, died in the early to mid 1600s.
Protestant Thomas Cranmer burned at the stake at Oxford, England, on March 21, 1556, by the short-lived counter-reformation government of “bloody” Mary. These gruesome executions were on the minds of the American founders when they wrote freedom of religion into the Constitution.
England also broke away from the Roman Catholic Church around 1535, as Henry VIII created the Church of England. Rather than tolerance, the new church of England executed dissenters and seized church lands. The king also took over a church-run system of censorship, licensing printers through the Stationers Company. and punishing any religious or political dissent through the Star Chamber and the lower courts.
After Henry VIII’s death, Catholic Queen Mary (also known as ‘Bloody Mary’) turned the tables and executed the top Protestant clergy. Mary’s reign (1553 – 1558) was short lived, and Elizabeth I, a Protestant queen, worked toward religious tolerance while protecting the country from invasions (from Spain in 1588) and assassination attempts from Catholics. These continued after her death. On Nov. 5, 1605, a small group of Catholic revolutionaries attempt to blow up the Protestant King James I while Parliament was in session — an event sill remembered on Guy Fawkes Day.
English Civil War
By the 1640s, an ongoing struggle between king and Parliament led to the English Civil War of 1641-1660. During this time, censorship was applied to the rapidly expanding printing business and enforced through the Licensing Order of 1643.
This period was time of religiously inspired revolution and civil war in England. Parliament broke with the king, and in 1649, political disputes led to the execution of King Charles I. In many cases, people who rebelled at intolerance of the Catholic Church were themselves intolerant. Milton, for example, did not want to let Catholics publish freely. But some Puritans, such as the more radical Levellers, were in favor of complete religious freedom. They said religious censorship kept people ignorant and that ignorance “fitted only to serve the unjust ends of tyrants and oppressors.”
Parliament won the war in 1645, and executed King Charles I in 1649, Oliver Cromwell and then his son Richard ruled. But Richard was unfit and in 1660, Britons welcomed Charles II back from exile. Soon Parliament and the king were at odds again. Charles II didn’t oppose Parliament openly but worked behind the scenes. As a result, Charles II ensured that English kings were firmly in power again, although a king would never rule without Parliament again.
John Milton, who argued for a free marketplace of ideas in his pamphlet called the Areopagitica.
One reason this is more than just ancient history is the eloquent dissent written by John Milton in his pamphlet Areopagitica of 1641, arguing for an open competition of ideas in the marketplace (the Areopagus of Athens was an open courtroom and marketplace). Perhaps the most famous line is this:
“Though all the winds of doctrine were let loose to play upon the earth, so (long as) Truth be in the field, we do injuriously, by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter. (See Dartmouth text of Areopagitica).
One lesson here is that dissent can be very significant in history, far outliving the laws that sparked the dissent in the first place. We’ll see this in the Whitney v California decision of 1927 and of course we’ve also seen it in the American civil rights movement.
Another lesson is that generations fought for freedom, and it was a long, hard process. As late as 1692, in Britain, a printer was hung, drawn (disemboweled), quartered (cut into pieces) for sedition and “compassing” (discussing) the death of the king. Executions for these offenses ended in 1694 with the lapse of the Licensing Act, due to the Glorious Revolution and the efforts of Enlightenment philosophers such as John Locke, although courts would sentence printers to jail time or transportation for sedition or libel throughout the 1700s. Prior restraint censorship ended with the Statute of Anne in 1710, which was considered a hallmark of British freedom in the mid- to late-1700s. But printers and editors were still persecuted after the fact for dissent against the government.
William III & Mary II, 1689 – 1702, the first constitutional monarchs of Britain.
England’s Glorious Revolution 1688
In 1688 James II tried to undermine Parliament, and he was deposed in what is called the Glorious Revolution because there was a major change of government effected without bloodshed. James fled England without a fight. Parliament called in William and Mary, the rulers of Holland, and made them king and queen. Parliament was now firmly in command of English politics.
William and Mary agreed to religious toleration and to Parliament’s claims to authority in a formal Declaration of Rights in 1688. The Declaration recognized basic freedom for British subjects to petition the king and to bear arms. It also prohibited excessive fines and cruel and unusual punishment. While the British Bill of Rights protected fewer individual rights than the American Bill of Rights adopted a century later, it was an acknowledgement that Britons were due a large measure of freedom.
Also, in 1689, the Act of Toleration acknowledged civil rights for Roman Catholics and Dissenters. In 1693, a college named for William and Mary was founded in Virginia.
Shift in public opinion
Crowds pelt Daniel DeFoe with flowers after his conviction for seditious libel in 1703.
Public opinion began to change in favor of freedom of expression during this time, and one of the best examples of that change was the way that the crowds threw flowers — instead of rotten tomatoes — when British writer Daniel DeFoe was sentenced to three hours in the pillory in 1703. DeFoe was convicted of seditious libel after writing a satyrical pamphlet that suggested hanging all religious dissenters in a tone that was so outrageous that he did not think it would be taken seriously. It was a turning point in public opinion as well as the British government’s subsequent attempts to rein in press freedom, although more than a century would pass in the UK before serious criticism of the government would be tolerated. (Defoe would go on to write some of the best-known journalism and fiction in literature, including The Storm (1704), one of the earliest reports of an actual event written from interviews with witnesses, along with Robinson Crusoe, Journal of the Plague Year, and Moll Flanders.)
The colonies
Laws in the new Virginia colony were harshly stacked against individual liberty, with 300 items that could be punished by torture or execution. These included the death penalty for for sedition against the governor or for speaking against the articles of the Christian faith. In 1620, the Virginia House of Burgesses stripped Capt. Henry Spellman of rank for “treasonable words.” During this period, thousands of people were brought before the Burgesses and punished for daring to voice criticism. Truth was not a defense in such cases. In fact, truthful criticism is seen as even worse since it further undermines authority.
William Berkeley, Governor of Virginia
In 1640, Sir William Berkeley (1606 – 1677) was appointed governor of Virginia and immediately banished the Puritans. In 1649 he invited Charles II, son of the king executed in 1648, to come over during this exile and be King of Virginia. Charles II stayed in France, and was restored to power in 1660 after Cromwell’s death.
It was Berkeley who famously said: “I thank God, there are no free schools nor printing [in Virginia]; for learning has brought disobedience, and heresy … and printing has divulged them, and libels against the best government. God keep us from both.” Berkeley was a brutal governor and it is widely held that his approach to government led to the insurrection known as Bacon’s Rebellion. Berkeley suppressed the rebellion without mercy and hanged so many rebels that even Charles II, restored to the throne in 1660, exclaimed, “That old fool [Berkeley] has put to death more people in that naked country (Virginia) than I did here (in England) for the death of the father!”
Berkeley was removed from the governorship and recalled to England, and Virginia celebrated his departure with bonfires. Berkeley sought an interview with the King, who always postponed it. The old man died, still waiting for his audience.
Meanwhile, the first newspapers printed in the colonies, such as Publick Occurrences in 1690 and the Franklin brothers New England Courant, printed in the 1720s,were also suppressed for sedition.
The trial of John Peter Zenger 1735 was landmark moment in American free speech. Zenger’s newspaper, the New York Weekly Journal, published two ballads celebrating the election of some of Gov. William Cosby’s opponents to positions of city magistrate. The ballad said their opponents were “pettyfogging knaves” and that the newly elected would “make the scoundrel rascals fly.” Zenger was charged with seditious libel and spent eight months in jail before the trial. At the trial, Andrew Hamilton, a Philadelphia lawyer, gave an eloquent argument to the jury, insisting that truth should be a defense against seditious libel.
The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny.
The Zenger Jury returned a not guilty verdict, which usurped judge’s prerogative to decide whether libel had been committed Zenger. The case had tremendous psychological impact in colonies and was widely accepted as a precedent in English law. In 1740, for example, William Parks, printer of the Virgina Gazette, published a story about conviction of a House of Burgesses member for stealing sheep some years previously. Parks was tried by the legislature on criminal libel. Citing Zenger, he used truth as a defense and was acquitted.
Franklin and the Cato Letters
CATO LETTERS: Of Freedom of Speech: That the same is inseparable from publick Liberty. (No. 15, 1721)
“Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech, which is the right of every man, as far as by it he does not hurt and control the right of another; and this is the only check which it ought to suffer, the only bounds which it ought to know.This sacred privilege is so essential to free government, that the security of property and the freedom of speech, always go together; and in those wretched countries where a man can not 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 freedom of speech; a thing terrible to publick traitors.
The Cato Letters were political opinion columns from two English journalists that were widely published in newspapers in the American colonies and England in the early to mid-1700s. It is interesting that very similar words, attributed to Benjamin Franklin, are engraved over one entrance to the US Senate in Washington DC.
Benjamin Franklin (1706 – 1790) was the model journalist and elder statesman of the American Revolution, and his ideas about press freedom were an important foundation of the First Amendment. Echoing Milton, he said that printers are educated in the belief that “when men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Public. When Truth and Error have fair Play, the former is always an overmatch for the latter.”
Franklin was also a cautious businessman, and wrote that he would avoid “printing such Things as usually give Offence either to Church or State.” Later in life he said that people who publish lies deserve to be punished. But then, he asked:
“To whom dare we commit the care of [punishing liars]? An evil magistrate entrusted with power to punish for words would be armed with a weapon most destructive and terrible. Under pretence of pruning off the exuberant branches he would be apt to destroy the tree.”
Therefore, under no circumstances should anyone be punished for publishing
what is true. Anyone who tries to use the powers of government to bring legal action against a publication that tells the truth “ought to be repudiated as an enemy to liberty.”
Revolutionaries
Sam Adams (1722 – 1803)
Sam Adams (1722 – 1803), brewer and patriot, seems less radical today. His argument for natural rights is straight from John Locke. And his religious tolerance would not extend to Catholics because, he thought, they would obey the Pope before any secular government.
“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.” 1772 — Samuel Adams on the Rights of the Colonists
Thomas Paine
Thomas Paine (1736-1809), wrote Common Sense (1776) a call to arms for America, and The Crisis (1776-77) encouraging fellow revolutionaries, The Rights of Man (1791-92) Paine’s reply to an attack on the French Revolution by Edmund Burke. and AGE OF REASON (1794, 1796) Paine’s biting criticism of the Bible and religion.
“The revolutions of America and France have … provoked people to think by making them feel… Such is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing. The sun needs no inscription to distinguish him from darkness.”
“These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered.” — The Crisis
Patrick Henry
In Virginia, Patrick Henry took the podium at the House of Burgesses on March 23, 1775, in Saint John’s Church in Richmond:
“… Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”
FRANCE
Censorship in France before and after the revolution
In France, before the 1789 revolution, official censors worked hard to contain the circulation of forbidden books and the anti-monarchist booklets and the innumerable pamphlets (called “libeles’) that floated around Paris and the provinces in the decades before the French Revolution.
Montesque had to work in secret on his Spirit of the Laws; Denis Diderot was hounded as he worked on his Encyclopédie; and Voltaire and Jean-Jacques Rousseau had to flee the country at various times in their careers. The idea that these writers were being oppressed by small minded censors seemed, to some, like “a flock of eagles submitted to the governance of turkeys.”
Not all were against them. Diderot was publicly accused of unpatriotic writing, and his apartments were searched by an official who had secretly hidden Diderot’s notes in his own apartment so they would not be discovered.
Camille Desmoulins (1760-1794), publiciste et homme politique. Paris, musée Carnavalet.
Camille Desmoulins (1760 – 1794), a lawyer and journalist, wrote Better to Die Than Not Live Free in 1788: “In a democracy, tho the people may be deceived, yet they at least love virtue. It is merit which they believe they put in power as substitutes for the rascals who are the very essence of monarchies. The vices, concealments, and crimes which are the diseases of republics are the very health and existence of monarchies…”
Desmoulins is remembered as the journalist who sparked the French Revolution when he stood on a table and urged angry mobs to “take up arms” on July 12, 1789, Two days later he helped organize the group that stormed the Bastille, an event commemorated every year as French independence day.
Olympe de Gouges
The free communication of thoughts and opinions is one of man’s most precious rights. Every citizen may therefore speak, write and publish freely, except that he shall be responsible for the abuse of that freedom in cases determined by law. Declaration of the Rights of Man and Citizen — France- August 26, 1789
( That the freedoms of speech and of the press are among the great bulwarks of liberty… any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right…” — Virginia Declaration of Rights, 1776 ).
As the French Revolution devolved into The Terror, radical Jacobins began executing moderates and Girondists like Desmoulins. Even Olympe de Gouges, author of the Declaration of the Rights of Woman and the Female Citizen, was executed in 1793.
Sweden, Denmark and Norway
Other nations protected freedom of speech and the press during the Enlightenment. Sweden was among the first to abolish complete censorship with a law guaranteeing freedom of the press in 1766. Denmark and Norway followed with their own laws on freedom of the press in 1770. An interesting historical discussion is found here at Free Speech – Free Press. Meanwhile, Norway continues to champion free speech around the world with its World Expression Forum in Lillehammer.