Freedom of speech

Freedom of speech is the great bulwark of liberty; they prosper and die together. And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers and encourages men of fine genius. Tacitus tells us, that the Roman Republic bred great and numerous authors, who writ with equal boldness and eloquence. But … “After the battle of Actium, when the interests of peace required that all power should be conferred on one man, great geniuses ceased work.” Tyranny had usurped the place of equality, which is the soul of liberty, and destroyed public courage. The minds of men, terrified by unjust power, degenerated into all the vileness and methods of servitude: abject sycophancy and blind submission grew the only means of preferment, and indeed of safety; men durst not open their mouths, but to flatter.

Thomas Gordon Cato’s Letter No. 15, Of Freedom of Speech: That the Same Is Inseparable from Public Liberty Saturday, February 4, 1720.

Those who seek to curtail free speech seek a tyranny over the mind; they want to prevent people from expressing opinions in case the listeners adopt them as their own. Thus, stifling free speech not only breaches the rights of the speaker but also breaches the freedom of thought of the listeners. Tyrants, both petty and gross, have ever sought to create a cocoon in which enslaved minds can be insulated from outside influences. Tyrants know that ignorance renders the human mind utterly defenseless, a circumstance in which individuals become drones.

Much of the confusion concerning free speech stems from treating free speech as something inherently inviolate without regard to its purpose. The purpose of free speech is to allow the holding, expressing, and hearing of opinions. Thus, it is not an infringement of free speech if the law:

1. criminalizes conspiracies to injure the person or property of others;
2. awards damages for defamation;
3. criminalizes the giving of false information to the police;
4. criminalizes perjury;
5. prohibits the use of dishonesty in commerce.

It is right that free speech be enshrined in every country’s constitution. However, those constitutions, like the German, which provide that freedom of speech is protected except where prohibited by legislation, make a mockery of liberty. The purpose of a written constitution is to limit the nature of the laws that can be passed. For the higher law to grant carte blanche to the lower law means there is in effect no restraint at all. For example, s 90 of the German criminal code provides: “Whoever publicly disparages the Federal President in a meeting or through the dissemination of writings shall be punished with imprisonment from three months to five years.” (Criminal Code S. 90 (1)).

Such laws foster a public spirit susceptible to despotic government. For there to be freedom, the people must have unfettered liberty to disparage their leaders, and to hear each other doing so. As John Adams explained:

The people … have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers. (A Dissertation on the Canon and Feudal Law, 1765).

German presidents are not made from different clay than the rest of us. They are no less susceptible to error, nor more sensitive to criticism. An assault on their dignity does no harm if they are honest and upright. As Thomas Gordon noted:

Guilt only dreads liberty of speech, which drags it out of its lurking holes, and exposes its deformity and horror to daylight. Horatius, Valerius, Cincinnatus, and other virtuous and undesigning magistrates of the Roman Republic, had nothing to fear from liberty of speech. Their virtuous administration, the more it was examined, the more it brightened and gained by enquiry. (Cato’s Letters No. 15, Of Freedom of Speech: That the Same Is Inseparable from Public Liberty, Saturday, February 4, 1720).

Supporters of the German law will say it is merely a reserve law, to be used solely when someone abuses their freedom of speech. But no good can come of such laws. Montesquieu observed: “By the laws of China, whosoever shows any disrespect to the emperor, is to be punished with death. As they do not mention what this disrespect consists of, everything may furnish a pretext to take away a man’s life, and to exterminate any family whatsoever.” (The Spirit of the Laws, 1748).

Even if a law has a laudable motive, such as banning racist, sexist, or homophobic remarks or prohibiting the denial of global warming, and even if the penalties are light, their mere existence on the statute books creates a submissive culture. Whereas history shows free speech emboldens. A free-speaking people treat would-be tyrants with scorn, whether they appear on the rostra or at the head of an invading army.

Bigots, liars and fools should have their words punished by the reprobation of the general sentiment, never by the law. This leads to the airways being filled with pugnacious, at times vitriolic, debate, but it is always healthy.

Some falsehoods, such as Holocaust denial, may seem too horrible to allow, but efforts to legally assist the truth only arouse suspicion in the minds of thinking people. Thus, the very act of supporting the truth with laws can lead to its widespread disbelief. Were it illegal in the United States to deny the Shoah (as it currently is in parts of Europe), reasonable people would suspect they were being kept from information that would change their view. It follows that freedom of speech in the United States is one of the main factors that keeps Holocaust deniers from gaining any credibility. As Thomas Jefferson explained:

Truth is great and will prevail if left to herself… she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them. (Letter to George Washington, September 9, 1792).