XVIII. The Rights of Free Speech and Publication

CHAPTER XVIII. THE RIGHTS OF FREE SPEECH AND PUBLICATION. § 321. The subject matter of this chapter is scarcely separable from that of the last. As ·belief, considered in itself,does not admit of being controlled by external power -as it is only the profession of "b.elief which· can be taken cognizance. of·· by authority and permitted. or prevented, it follows that the assertiono£ the right to freedom of belief implies the right to freedom of speech. Further, it implies the right to use speech for the propagation of belief; seeing that each of 'the propositions constituting an argument or arguments,nsed to support or enforce a belief, being itself· a belief, the right to. express it is included with the right to· express the belief to be justified. Of· course the one right like the other is an immediate corollary from thelawo£equal freedom. By using speech, either £orthe expression of a b~lie£ or for. the maintenance of· a belief, .no one prevents any other person .from doing the like: unless, indeed, by· vociferation or persistence he prevents another from being· heard, in which case he is habitually recognized as unfair,that is, as breaking the law of equal freedom.

Evidently with change of terms, the same things may be said concerning the right o£publicationU the liberty of unlicensed printing." In respect of their ethical relations, there exists no essential difference between the act of 142 JUSTICE. speaking and the act o£ symbolizing speech by writing, or the act of multiplying copies of that which has been written. One qualification, implied by preceding chapters, has to be named. Freedom of speech, spoken, written, or printed, does not include freedom to use speech for the utterance of calumny or the propagation of it; nor does it include freedom to use speech for prompting the commission of injuries to others. Both these employments of it are obviously excluded by those limits to individual liberty which have been set forth. § 322. Though in our time and country defence of these rights seems needless, it may be well to deal with such arguments against them as were urged among ourselves in comparatively recent times and are still urged in other countries.

It is said that a government ought to guarantee its subjects" security and a sense of security;" whence it is inferred that magistrates ought to keep ears open to the declamations of popular orators, and stop such as .are calculated to create alarm. This inference, however, is met by the difficulty that since every considerable change, political or reljgious, is, when first urged, dreaded by the majorit.y, and thus diminishes their sense of security, the advocacy of it should be prevented. There were multitudes of people who suffered chronic alarm during the Reform Bill agitation; and had the, prevention of that alarm been imperative, the implication is that the agitation ought to have been suppressed. So, too, great numbers who were moved by the terrible forecasts of 'J 1 he Standard and the melancholy wailings of The He1~ald, would fain have put dO'wn the free-trade propaganda; and had it been requisite to maintain their sense of security, they should have had their way. And similarly with removal of Catholic dis abilities. Prophecies were rife of the return of papal persecutions with all their horrors. Hence the speakj ng THE RIGHTS OF FREE SPEECH AND PUBLICATION. 143 and writing which brought about the change ought to have been forbidden, had the maintenance of a sense of security been held imperative.

Evidently such proposals to limit the right of free speech~ political or religious, can be defended only by making the tacit assumption that whatever political or religious beliefs are at the time established, are wholly true; and since this tacit assumption has throughout, the past proved to be habitually erroneous, regard for experience may reasonably prevent us from assuming that the current beliefs are wholly trtie. We must recognize free-speech as still being the agency by which error is to be dissipated, and cannot without papal assumption interdict it. Beyond the need, in past times unquestioned, for restraints on the public utterance of political and religious beliefs at variance with those established, there is the need, still by most people thought unquestionable, for restraining utterances which pass the limits of what is thought decency, or are calculated to encourage sexual immorality. 'fhe question is a difficult one-appears, indeed, to admit of no satisfactory solution. On the one hand, it seems beyond doubt that unlimited license of speech on these matters, may have the effect of undermining· ideas, sentiments, and institutions which are socially beneficial; for, whatever are the defects in the existing domestic regime, we have strong reasons for believing that it is in most respects good. If this be so, it may be argued that publication of doctrines, which tend to discredit this regime, is undoubtedly in jurious and should be prevented. Yet, on the other hand, we must remember that in like manner it was, in the past, t.hought 'absolutely certain that the propagators of heretical opinions ought to be punished, lest they should mislead and eternally damn those who heard them j and this fact suggests that there lllay be danger in assuming too con fidently that our 'opinions concerning the relations of the sexes are just what they Ehould be. In all tirnes and 144 JUSTICE.

places people have been positive that their ideas and feelings on these matters, as well as on religious matters, have been right; and yet, assuming that we are right, they must have been wrong. Though here in England we think it clear that the child-marriages in India are vicious, yet most Hindus do not think so; and though among ourselves the majority do not see anything wrong in mercantile marriages, yet there are many who do. In parts of Africa not only is polygamy regarded as proper but monogamy is condemned, even by women; while in rrhibet polyandry is not only held right by the inhabitants but is thought by travellers to be the best arrangement practicable in their poverty-stricken country. In presence of the multitudinous differences of opinion found even among civilized peoples, it seems scarcely reasonable to take for granted that we alone are above criticism in our conceptions and· practices; and unless we do this, restraints on free-speech concerning the relations of the sexes may possibly be hindrances to something better and higher.

Doubtless there must be ~vils attendant on free speech in this sphere as in the political and religious spheres; but the conclusion above implied is that the evils must be tole rated in consideration of the possible benefits. Further, it should be borne in mind that such evils will always be kept in check by public opinion. The dread of saying or writing that which will bring social ostracism, proves in many cases far more effectual than does legal restriction. § 323. Though it is superfluous to point out· that, in common with other rights, the rights of free speech and publication, in early times and 1110st places either deniw. or not overtly recognized, have gradually established them selves; yet some evidence may fitly be cited. with a view to emphasizing this truth. Various of the facts instanced in the last chapter might be instanced afresh here j since .suppression of beliefs has, by THE RIGHTS OF FREE SPll1ECH AND P~UBLICATION. 145 implication, been suppression of free speech. That the anger of the Jewish priests .. against Jesus Christ for teaching things at variance with their creed led· to his crucifixion; that Paul, at first a persecutor of Christians, was himself presently persecuted for persuading men to be· Christians; and that by sundry Roman emperors 'preacherso£ Chris tianity weremartyredj are familiar examples of the denial of free speech in early times. So, too, after the Christian creed became established, the punishment of some who taught the non· divinity of Christ, of others who publicly asserted predestination, and· of othersw ho ·spread the doc trine of two supreme principles of good and evil, as well as the persecutions of Huss and Luther, exemplify in ways almost equally familiar the denial· of the right to utter opinions contrary to those which are authorized. And so, in our country, has it been from the time when Henry IV.

enacted .severe. penalties .on teachers of heresy, down to the 17th century when the nonconforming clergy were punished for teaching any other than the church doctrine and··Bunyan was imprisoned for open-air preaching~down, further, to the last trial for propagating atheism, which .is within our own recollection. But gradually, during recent centuries, the right of free speech on religious matters, more and more asserted, has been more and more admitted; until now there is no restraint on the public utterance of any religious opinion, unless the utterance is gratuitously instilting in. manner or form. ' By a· parallel progress there has been established that right of free speech on· political questions, which in early days was denied. Among the Athenians in Solon's time, death was inflicted for opposition to a certain established policy; and among the Romans the utterance of proscribed opinions was punished as treason. So, too, in England cen· turies ago, political criticism, even of a moderate kind, brought severe penalties. Later times have witnessed, now greater liberty of speech and now greater control: the noticeable fact ']46 JUSTICE.

being that during the war-period brought on by the French revolution, there was a· retrograde movement in respect of this right as in respect of other rights. A judge, in 1808, declared that "it was not to be permitted to any nlan to make the people dissatisfied with the Government under which he lives." But with the commencement of the long peace there began a decrease of the restraints on political speech, as at other restraints on freedom. Though Sir F. Burdett was imprisoned for condemning the inhuman acts of the troops, and Leigh Hunt for commenting on excessive flogging in the army, since that time there have practically disappeared all impediments to the public expression of political ideas. So long as he does not suggest the commission of crimes, each citizen is free to say what he pleases about any or all of our institutions: even to the advocacy of a form of government utterly different from that which exists, or the condemnation of all government.

Of course, with increasing recognition of the right of free speech there has gone increasing recognition of the right of free publication. Plato taught that censors were needful to prevent the diffusion of unauthorized doctrines. With the growth of ecclesiastical power there came the suppression of writings consider8d heretical. In our own country under Queen Elizabeth, books had to be officially authorized; and even the Long Parliament re-enforced that system of licensing against which Milton made his cele brated protest. But for these two centuries there has been no official censorship, save of public plays. And though many arrangements for shackling the press have since been nlade, yet these have gradually fallen into disuse or been repealed. § 324. But in this case, as in cases already noticed, it follows from the precedence which the preservation of the society has over the claims of the individual, that such restraints may rightly be put on free speech and free pub lication as are needful during war to prevent the giving of THE RIGHTS OF FREE SPEECH AND PUBLICATION. 147 itdvantage to the enemy. If, as we have seen, there is ethical justification for subordinating the more important rights oithe citizen to the extent requisite for successfully carrying on national defence, it of course follows that these less important rights may also be subordinated.

And bere, indeed, we see again how direct is the con nexion between international hostilities and the repression of individual freedom. For it is manifest that throughout civilization the repression of freedom of speech and freedom of publication, has been rigorous in proportion as. militancy has been predominant; and that at the present time, in such contrasts as that between Russia and England, we still observe the relation. After recognizing the justifiable limitations of these rights, that. which it concerns us to note is that they, in common with the others severally deduced from the law of equal freedom, have come to be recognized in law as fast as Rociety has assumed a higher form. 48 CHAPTER XIX. A RETROSPECT WITH AN ADDITION. § 325. Where n1en's natures and their institutions are incongruous, there exists a force tending to produce change. Either the institutions will remould the nature or the nature will remould the institutions, or partly the one and partly the other; and eventually a more stable state will establish itself.