Truth, the State, and Democracy: The Scope of the Legal Right of Free Expression

G. Stuart Adam (Carleton University)

Abstract: In democracies, the legal right of freedom of expression is regarded as a "core" right. The author starts with the declaration that it is not sufficiently valued in Canada. He then dissects it to reveal its inner structure and the social and individual interests it represents, and then demonstrates how it fits into the system of rights and powers which constitute the legal structure of society. He concludes by saying in matters of free expression the best State is the limited State.

Résumé: La liberté d'expression constitue en régime démocratique un droit fondamental. Selon l'auteur, ce droit est insuffisamment apprécié au Canada. Il l'analyse donc afin de révéler sa structure interne ainsi que les intérêts sociaux et personnels dont il est porteur. Il montre finalement son imbrication dans le système des droits et pouvoirs qui forment la structure légale de la société. L'auteur conclut qu'en matière de liberté d'expression le meilleur État est celui qui gouverne le moins.


When an individual's right to speak or to publish is challenged or when that same person is told that it is all right to express a certain idea, but not in foul or insulting language, the ensuing discussion is likely to be conducted on one of two levels. It may be conducted on an informal level and the person who has exercised the right in a contentious way will be admonished, but not coerced, to reconsider what he or she has said. Or it may be conducted on a legal level, in which the debate takes place not on the street or in the columns of a newspaper but in a court in which the State, acting through a judge and sometimes a jury, will be asked to say authoritatively what is allowable. In the second case, the word "right" has a particular meaning. If the court says the opinions or the words that have been uttered are too objectionable or too harmful to be allowed and denies the "right" of one of the parties to speak them again, the discussion in which the words were spoken is stopped. Put more generally, if the court rules against the words, the State will have created silence where human voices might have been heard.

So the meaning we give to the idea of the legal right of freedom of speech or, more broadly, freedom of expression is important not only for individuals demanding personal freedom, but also for the way in which it shapes debate and discovery in society and thereby the quality of everyone's life. That legal right is the principal subject of this paper. My aim is to promote a deeper understanding of it.

I bring to this task a belief that it is not sufficiently appreciated in Canada. It has become, like our Constitution, a subject of controversy--no longer the axiomatic basis for our cultural and political life but increasingly a disputed ground which some interests seek to renegotiate. This is not to say that all changes in the laws affecting freedom of expression are unwarranted, but it does mean that as such laws or policies are being considered we are tampering with a foundation of the democratic edifice. We cannot afford to make mistakes. If we distrust the value of this freedom, we distrust Democracy itself.

My strategy is to dissect the several layers of this legal right and to view it organically within the intellectual and political culture in which it was formed. In section one, I classify rights generally and locate the legal concept of freedom of expression within the system of rights which mark democratic societies. In sections two and three, I examine the circumstances under which the concept evolved in the Anglo-democratic tradition and then provide a summary of the major arguments writers from the seventeenth century to the present have used to defend free speech against the power of the legislatures and the courts. This summary organizes and assesses the arguments in what I believe is a new way.

In the concluding section, I argue that the primary meaning we should give to the concept is the one that was established historically and involves maximum freedom from the power of the State. I say, in light of the historic arguments, what weight the concept should be given in law and then I assert that neither the courts nor the legislatures should limit such freedom except to ensure that democratic institutions are themselves free to operate and to ensure that the State can provide minimal and carefully defined conditions for national security, public order, public morality, and individual safety and/or well-being.

Paradoxically, putting limits on rights is as as central to their description as the justifications for minimizing or eliminating limits. I do not in this paper propose to justify limits carefully. However, I acknowledge that even in the most liberal societies, there are likely to be some. So although I am defining the legal right of freedom of expression in a broad and liberal fashion, I am at the same time placing it within the framework of a legal order in which, as Thomas Emerson has pointed out, there are social values and social goals with which it is sometimes in conflict.

The Nature of Rights

Ronald Dworkin says that rights are "political trumps held by individuals" (Dworkin, 1978, p. xi). I take this to mean that a person who has a right is like a person holding a trump in cards. Trumps in bridge are the most valuable cards; they give the individuals who hold them power to keep their adversaries at bay. So to expand the metaphor, a trump or a right confers on a person a power to stop someone else from doing something he or she may want to do.

The arena in which such trumps or rights are specially important is created by the State which Joseph Raz defines as the political organization of a society, "its government, the agent through which it acts, and the law, the vehicle through which much of its power is exercised (Raz, 1986, p. 70). Legal rights create powers in individuals or groups or corporations to prevent others such as officers of the State from doing things to them.

But they also have another function. Rights sometimes confer powers on individuals to compel others to do things they may not want to do. Not only can rights be exercised as trumps to prevent something from happening, they can also be exercised in a pro-active or a positive way to compel someone to do something. This distinction was made by Isaiah Berlin when he wrote that the negative sense of the concept of liberty or right

is involved in the answer to the question "What is the area within which the subject--a person or group of persons--is or should be left to do or be what he is able to do, without interference by other persons?" The second, which I shall call the positive sense, is involved in the answer to the question "What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?" (Berlin, 1969, pp. 121-122)

Freedom of expression is mainly a negative liberty or right. In other words, it confers an immunity in Berlin's terms, on individuals or on what the law recognizes as persons, so that they may express themselves and speak without the interference of the State. It creates a domain of spontaneous discourse that is not subject to legal regulation or administration. The basic meaning of the right of free expression, then, is that it is a negative liberty, possessed by individuals, which prevents the State from interfering with the spontaneous discourse that marks scientific, cultural, and political life. It should be noted, however, that in such cases as the Canadian Federal Access to Information Act the concept is enshrined in a positive right so that individuals may compel a government to hand over certain kinds of information.

There are three other features of the legal right of free expression that demand notice. First, it is divided into three aspects. When John Milton published Areopagitica, a defence of unlicenced printing, in 1644, he asked for the liberty "to know, to utter, and to argue freely according to conscience above all liberties" (Milton, 1951, p. 52). He was asking for three liberties in one: a right to know, a right to communicate what he knew, and a right to express opinions about what he knew. To this day the legal right of freedom of expression embraces each of these aspects.

Secondly, the legal right of free expression is circumscribed by the operation of other rights. As noted above, the right of free expression is not absolute. It is part of a complex of hierarchically arranged and limited rights or powers which together constitute the legal structure of society. Speaking notionally, some of these rights circumscribe the operations of the right of freedom of expression and thus limit it. But thirdly and finally, the right of free expression is a "core" right. This means that it has a prominence or a weight that only a few other rights, such as the right to vote or associate, possess. Freedom of expression in the democratic tradition is regarded as a foundation of the political and social edifice and the weight it bears is a reflection of the importance we have given it. Giving it such a weight and making it a core right is the result of more than three hundred years of debate.

The Origins of the Concept

The Anglo-democratic concept of freedom of speech was born in the political and religious struggles of the seventeenth century and, for our purposes, it reached a stage of maturity and/or at least completeness in the hands of judges and litigants in twentieth-century courts. In a sense, it was the press that made freedom of speech an issue in the legal culture. The press gave a public face in the seventeenth century to what may have been, except for it, private disputes between politicians and private disputes between divines. The demand for increased liberty of the press--that is to say, for more freedom for authors to publish tracts expressing opposition to established political power and more freedom for authors to express religious dissent--was part of a cultural transformation in which new ideas about the organization of the State and society were taking hold. At least two items were permanently inscribed on the cultural template by the struggle for control of the State and the church: one was the liberty of the press; the other was religious toleration. Together they produced an attachment in the culture to freedom of speech (Schauer, 1982, p. 106).

This is not to say the freedom that was first inscribed amounted to all that much. When John Milton published Areopagitica in 1644--it is still the most persuasive essay on the subject--he was really seeking a liberty from the effects of a clumsy and administratively inefficient licensing act rather than freedom from the draconian law of criminal libel. He was not asking for a liberty that would permit the circulation of Roman Catholic doctrines, but rather the liberty to publish the "neighboring differences" between Protestant sects (Milton, 1951, p. 52). Still, something was begun in that century. Religious dissent was finally tolerated and religious pluralism became a way of life. Similarly, parliamentary supremacy and, as important, political opposition became institutionalized. In this and the succeeding century, the factions that marked parliamentary life in England turned slowly into the organized parties which now compete for the power to manage the State. And as these changes were occurring, the press--conceived as a technology, an institution eventually, and as the site of authorship--began its career towards legal freedom and played an increasingly prominent role in the new culture.

From the seventeenth century to the twentieth, the fight for the liberty of the press was focussed mainly on the scope, the administration, force, and effect of the common-law crime of criminal libel. That law, with its four branches--seditious libel, defamatory libel, obscene libel, and blasphemous libel--and the various offshoots and parallel crimes or administrative devices it inspired represented the power of the State to control public discussion and belief. The part of criminal libel relating to the public order and politics was a legacy of the Court of Star Chamber. The parts of it dealing with sex and belief were formulated in the Ecclesiastical Courts. Despite an inchoate attachment to concepts which made certain forms of political opposition and religious pluralism legitimate, it was neverthess a crime in the seventeenth and eighteenth centuries and for a good part of the nineteenth century to publish anything in England which tended to disturb the peace of the kingdom. This actually meant for quite a long time that a disturbance did not have to occur for a criminal libel to have been committed; it meant that when a judge had been satisfied that a published work had such a tendency, then a criminal libel had been committed and somebody was fined or sent to jail. And so it was a seditious libel to publish or circulate something about the British Parliament, the Crown, the Courts or the Constitution which would incline subjects to disloyalty; it was a defamatory libel to say that a minister of the Crown was corrupt; it was an obscene libel to circulate materials which inclined ladies and men to engage in sexual relations or sexual acts not recognized by the Church of England; and it was a blasphemous libel to profess atheism or to otherwise defame the name of the Divine or the Church.

The law of criminal libel has evolved and passed through several stages, each of which represent important milestones in the history of Democracy. To characterize the stages and the changes in the broadest terms, the law progressively weakened and as it weakened Democracy strengthened. As the law became more liberal, public speech rather than private conversations became the basis for public life and toleration became increasingly a foundation for religious and social life. In stage one, in the mid-seventeenth century, the law was as strong as it could be. It was enforced through the device of a licensing authority--what the Americans now call prior restraint. In stage two, which followed the suspension of the Licensing Acts and the various administrative devices that succeeded it, the liberty of the press consisted, in Lord Mansfield's words uttered in the late eighteenth century, "in printing without any previous licence, subject to the consequences of the law" (Howell, 1809-26, p. 1128). The law could be harsh and the consequences severe, but the idea had entered the legal system that published material should not be subject to prior restraint. In later stages, the law was re-stated, and the conditions and methods of enforcement liberalized.

The debate on liberty of the press was already more than 100 years old by the time Lord Mansfield uttered his declaration on the liberty of the press. The Licensing bill of 1643, one of several in the century, had started the debate. Its enactment led John Milton to protest and thus to compose the Areopagitica. Milton's arguments shaped the manner in which the subject was subsequently discussed. For the next two centuries and into our own, the use of the law of criminal libel or other statutes such as Canada's Hate Propaganda statute which have been inspired by it, has provoked protests and a pamphlet literature which together provide the materials for a democratic theory of freedom of speech. The major treatises by Milton in the seventeenth century, Lord Bolingbroke, Cato, Candor, Junius, John Wilkes, Lord Camden, and Thomas Lord Erskine in the eighteenth century, and by James and John Stuart Mill in the nineteenth are for the most part responses to the applications of the law of criminal libel.

Leaping forward in time, Salman Rushdie's essay, published in The Independent, after he was threatened with death by Muslim extremists for publishing The Satanic Verses in 1988, is a contribution to the canon. Rushdie was speaking back to the concept of the law of blasphemous libel just as the defenders of Phillipe Rushton, a professor of psychology at the University of Western Ontario who started a controversy in 1989 over academic freedom when he published a paper which rated races and intelligences, were speaking back to the concept of seditious libel. So in summary, free speech theory is in large part the product of debates in the courts and in the press over the purposes, scope, administration, and occasions of the law of criminal libel. It is a product of real history, of lived experience as much as it is the product of abstract philosophical reflections. The latter, however important and illuminating, are no more important nor independent of the body of spontaneous argument formulated by a clan of eloquent democrats, lawyers, mavericks, and literary figures who argued with officers of the State and asked that they change the law or administer it more wisely.

The Arguments

What, then, did these pamphleteers, journalists, philosophers, lawyers, and occasional politicians say as they justified limiting the power of the state to punish acts of expression--first to the social, economic, and religious interests that controlled the State through Parliament after the Monarch was pushed to the side, then to Parliament even after it had been democratized, and finally to the judges who enforced the law? Twentieth-century writers have argued that the theory of justification they composed includes four basic arguments: an argument which says that freedom of expression is essential to the development of Truth; an argument which says that it is the sina qua non of Democracy; an argument which says that it is an essential condition of individual self-development; and an argument which says that it is an essential condition for peaceful social change (Emerson, 1966, p. 3).

It is certainly true to say that such arguments and others can be easily found in this canon. However, I would say that at a deeper level there are three fundamental co-ordinates which organize the discourse and are basic to the theory. The first co-ordinate is a belief in the integrity and value of the Imagination. Speaking notionally, I mean by the term Imagination a natural property--the power to create--of individuals and a property of culture itself. In both cases, I mean the ways in which human beings organize, record, and communicate human experience and the ways in which human beings invent visions of themselves and nature. The Imagination is the agent of Truth.

The second co-ordinate is the distrust of the State or, to put it a little differently, the part of society which, as Max Weber would eventually put it, possessed a monopoly on the means of violence and could use its coercive power to crush invention and opposition. With liberalism and Democracy went a sense of caution--a sense that the State's power, however necessary, creative, and useful, could be used, as it was in the case of the law of criminal libel, for the nastiest of reasons and with the nastiest results. The backdrop to the early Liberal Imagination was the Authoritarian State which, it was widely believed, held much of the human spirit at bay. The sense of caution did not change all that substantially after the State had been democratized.

The third co-ordinate, then, was Democracy and it was conceived as a series of methods, including elections and free speech, of incorporating the State into society, and subordinating its power and aims to the will of its citizens. The arguments for free speech which arose out of the idea of Democracy were undoubtedly the most powerful. In the tradition of argument which marked liberal societies, the beneficiaries of free speech were seen to be the individual and society, or society and the individual, depending on which of the democratic traditions a particular writer represented. In either case, Democracy would produce a means of incorporating the Truth, which was the product of the Imagination, into social arrangements and individual purposes. Truth and its strategies promoted Progress in the social and political spheres; it promoted growth in the individual and private spheres. I will turn now to showing how these co-ordinates or touchstones shaped the arguments.

The Imagination

I recognize that the word Imagination is a bit cryptic and one that is probably foreign to such a positivist enterprise as the study of law. But, on reflection, it seems to me that it is the right one. Eugene Goodheart says the Imagination is "the very medium of thought" (Goodheart, 1973, p. 28). Michael Oakeshott, with greater particularity and purpose, gives the word meaning by inviting us to consider a world comprised of selves. The self, he writes, "is activity... this activity is primordial; there is nothing antecedent to it.... [We] call this activity `imagining': the self making and recognizing images, and moving about them in manners appropriate to their characters and with various degress of aptitude" (Oakeshott, 1967, p. 204).

So the Imagination is mind, a primordial or natural agent, in action. But it is not solely a natural agent. It always functions in relation to the actions and expressions of others and those expressions may be in the present or in the past, in books or in films. In other words, the Imagination as an individual phenomenon functions in the domain of culture. So there is a domain of the Imagination which has a spontaneous aspect and a domain of the Imagination which has a continuous aspect. It is born, in other words, in the souls of individuals but preserved in the canons of literature and art, science, and history--what we commonly think of when we think of culture.

Not surprisingly, the category of the Imagination figures prominently in Milton's pamphlet on unlicenced printing. His idea of the Imagination was religious. Individuals, he argued, were the creatures of God; God was the source of Reason; and books were the primary expression of this Reason. That's why it was a mistake to censor them before they were published. Milton wrote: "...who kills a man kills a reasonable creature, God's image; but he who destroys a good book, kills reason itself, kills the image of God, as it were, in the eye.... [A] good book is the precious lifeblood of a master spirit, embalmed and treasured up on purpose to a life beyond" (Milton, 1951, p. 5).

What Milton argued for, or at least what his arguments added up to, was a domain of freedom in which the Reason of individuals became entangled with the Reason of other individuals and Truth--by this he meant Christian as well as civil truth--would emerge progressively over time. At the heart of his argument was a belief that the State could not substitute its judgment on questions of doctrine for the spontaneously and dialectically produced judgment of the smart people in civil society, acting and imagining and arguing outside the supervision of the State. What was implied was that the State itself should be enveloped and shaped by the Truth the process generated.

The idea of the process has been characterized by modern writers as a so-called marketplace of ideas. But the importation of such commercial imagery does not do justice to Milton's language or his ideas. The primary elements in his cosmology were good and evil, and truth and falsehood. These, particularly the first two, were--as he said--"in the field of this world...together almost inseparably..." (Milton, 1951, pp. 17-18). For virtue or truth to prevail, individuals had to engage in acts of choice. They had to choose good over evil or truth over falsehood. Their acts of choice would liberate virtue and truth from the soils of evil and falsehood and these virtues and truths would thereby be incorporated into religious and civil life.

We are inclined these days to see Milton as part of the Real Whig tradition--individualist, rationalist, and incipiently republican. But while he was certainly individualist and rationalist and, perhaps, republican, he was also Protestant. The touchstone of the conversation he was promoting was the concept of Christ himself. Put differently, the individuals of his imagination were not free-floating or unaccommodated, but guided largely in their ruminations by the voice of God or his Son. It was a Christian strategy for Truth which denied the primacy of the temporal and thereby the State.

The structure of Milton's thesis has survived in certain branches of liberalism to this day, but without its religious sponsor. As the Enlightenment progressed, the ideas of Reason and Truth became secularized and, increasingly, one looked not to God but to the senses to justify belief. Amongst the items to which the Enlightenment gave prominence was empiricism. The way to justify belief was to point to what can be known through observation. Hume, for example, who wrote on the liberty of the press, did so from the point of view of an empiricist. What was slowly taking hold in English culture was an explicit conception in social and political matters of Reason, not as a natural property of God's cosmos, but as a human discovery which produced strategies for knowledge and a faith in the possibility of Truth.

In John Stuart Mill's meditations on freedom, the Imagination would continue to function as a category. Its Truth would be the product of intellectual strategies, whether empirical, rational or poetic; and it would continue to function dialectically. Mill, echoing Milton, wrote: "...though [a] silenced opinion may be an error, it may and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied" (J. S. Mill, 1984, p. 116).

In the twentieth century, we have a remarkably rich conception of the Imagination, although we rarely think of it as such. Its products--philosophy, science, and perhaps especially the novel which has so often and so commonly been an object of the state's vengeance--are everywhere. The knowledge the Imagination has generated, while not always good for humankind, has certainly transformed human life. Science is clearly a beneficiary of the independence it enjoys. But there is no reason why science should be specially privileged. Milan Kundera says that novel is an instrument of reason which, from Cervantes to the present, has explored regions of experience and the soul and thus is a unique and vital source of human understanding. If he were asked again to defend novelists from persecution, as many Eastern European writers have, it would be in the name of the Imagination as the source of knowledge, perhaps of the Truth, and in the name of the novel as one of the Enlightenment's most sacred inventions. Salman Rushdie, when called upon to respond to those who called him a blasphemer did as much when he wrote

...that the point of view from which I have... attempted this process of literary renewal is the result not of the self-hating deracinated uncle-Tomism of which some have accused me, but precisely of my determination to create a literary language and literary forms in which the experience of formerly colonised, still-disadvantaged peoples might find full expression. If the Satanic Verses is anything, it is a migrant's-eye view of the world. It is written from the very experience of uprooting, disjuncture, and metamorphosis... that is the migrant condition, and from which, I believe, can be derived a metaphor for all humanity. (Rushdie, 1990, p. 18)

Faith in the Imagination as the agent of transcendence--as the source and the archive of invention--need not be based on a completely digested picture of its products. It can be based instead, as Frederick Schauer has pointed out, on a faith in the processes, whether scientific or novelistic or philosophical, which we have developed in this culture to pursue Truth. Schauer says that if "we reject the possibility of attaining objective knowledge... then defining Truth as a process rather than a standard becomes compelling" (Schauer, 1982, p. 20). In either case, the products and the processes deserve to be protected from the power of the State to censor or otherwise condemn. The idea is that the products of culture, seen in the light of Humanistic and Enlightenment aims, should be the source rather than the product of the State's aims and character. So in a liberal society, there is a powerful rule that says the products and processes of the Imagination should not be subject to the scrutiny and the direction of the State. The State cannot say what is true and what is false. This brings me to the image of the State, and the fear of it, in the discourse on freedom of expression and speech.

The State

It is easy to write parodies of politicians and bureaucrats, and this I do not intend. We are talking here of divisions of labour and responsibility. It is clear to me that politicians and bureaucrats can be imaginative, are certainly necessary and likely to do a great deal of good. To say this, however, is not to empower them to do things they cannot properly do. Amongst the things they cannot do, according to the doctrines of the canon I am describing, is judge reliably, when it takes a subtle caste of mind, what is good or what is evil or what is true and what is false. It is not that they cannot be right some of the time. It is that the power they possess creates too many opportunities to be wrong and too many opportunities for narrow interests to pursue their agendas through the law rather than to seek the resolution of conflict through discussion. The law is cleaner and less awkward. It is also more dangerous.

This doubt in the capacities of officials to engage questions which require a subtle cast of mind finds expression in Milton's pamphlet and enjoys a healthy life to the present. Part of this original pamphlet was devoted not to the role of Reason and the Imagination as the agents of Progress, but to practical questions involving the administration of the Licensing Act and the law of criminal libel. Such practical questions included the observation that if people really wanted to say iniquitous things or circulate them, they would do so, regardless of the existence of a powerful and carefully administered law. He also said an act of censorship by the State directs attention to items which otherwise would be beneath notice. In this vein, he wrote, that "instead of suppressing sects and schisms, it raises them and invests them with a reputation" (Milton, 1951, p. 37). In other words, clumsy prosecutors promote the interests of the people they oppose by giving them free publicity. But more thoughtfully and with greater emphasis, he said that if the licensing system which he was opposing was to be effective--that is to say, if it were to promote manners and improve thought--such effectiveness would be dependent on the quality of the licensers. He put the case this way: If a licensing system is to improve society, then it is important that the licenser be "above the common measure...studious, learned and judicious." But how could it be so, Milton asked. The work is tedious, "an unpleasing journey-work" which could have only one result--namely, that the licenser would be "either ignorant, imperious and remiss, or largely pecuniary" (Milton, 1951, p. 28). So from the beginning there was a distrust of the State. In Milton's essay, the agents of the State--licensers or bureaucrats like the ones that administer our boards of censorship or customs acts--were described as inept or unimaginative.

In John Stuart Mill's essay, the distrust of the State was expressed more subtly. He said in the closing paragraphs that

The mischief begins when, instead of calling forth the activity and powers of individuals and bodies, it substitutes its own activity for theirs.... The worth of a State, in the long run, is the worth of individuals composing it; and a State which postpones the interest of their mental expansion and elevation to little more of administrative skill... will find that with small men no great thing can really be accomplished. (J. S. Mill, 1984, p. 187)

Mill imagined the State not so much as Orwell did 80 years later, as a source of deadening control and right-think, but as an institution which would simply sabotage the impulse to invent.

Deadening the impulse to invent is one thing; contolling the mind is another; punishing the Truth is yet another. But to the extent there is a dominant image of the State in the texts on freedom it is one in which the State is simply error-prone. Frederick Schauer says that a focus on the "history of error makes us properly wary of entrusting to any governmental body the authority to decide what is true and what is false.... [As] long as individuals are fallible," he writes, "so too are governments" (Schauer, 1982, p. 38). He goes on to say that the justification of free speech is largely based "on a distrust of the ability of government to make the necessary distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders and a somewhat deeper distrust of governmental power." In summary he says that "the most persuasive argument for a Free Speech Principle is what may be characterized as the argument from government incompetence" (Schauer, 1982, p. 86).

It is not hard to imagine what he has in mind. The early phases of the struggle for freedom of expression involved the freedom to express religious views. A later phase involved a struggle for the freedom to express political views which authors such as Daniel Defoe, Lord Bolingbroke, John Wilkes, Tom Paine, Richard Carlile, William Cobbett, and others may have thought were worthy of discussion but the agents of the State thought otherwise. Yet a later phase, which has persisted in this century, involved a struggle for the freedom to express views on sexual relations through the vehicles of novels and film. Novelists such as Theodore Dreiser and James Joyce had run-ins with official censors.

Such acts of censorship are catalogued and so there is no need to repeat here what those catalogues contain. But it may be noted that in Britain, customs officials and the courts together banned for a while Ulysses. As Donald Thomas notes, from "1922 until 1936 Ulysses, like many of its shabbier contemporaries, was obliged to run the gauntlet of the Customs, who in 1923 seized all but one copy of a complete edition of the novel" (Thomas, 1969, p. 303). Radclyffe Hall's The Well of Loneliness, published in Paris, was "intercepted by the Customs [and] declared obscene by the magistrate's courts and destroyed" in November 1928 (Thomas, 1969, p. 305). A similar fate was destined to keep Lawrence's Lady Chatterley's Lover out of circulation; Hubert Selby Jr.'s Last Exit to Brooklyn was similarly convicted in 1967 (Thomas, 1969, p. 4). Julia Carlson notes that between 1929 and 1989 "Marcel Proust, William Faulkner, Ernest Hemingway, Saul Bellow, Vladimir Nabakov, Arthur Koestler, Heinrich Boll, Emil Zola, Jean Paul Sartre, Alberto Moravia, Sinclair Lewis, Dylan Thomas, Christina Stead, H. G. Wells, Mikhail Sholokov, Christopher Isherwood, Nadine Gordimer, and James Baldwin" have had books censored by the Irish Censorship Board (Carlson, 1990, p. 1)

These and other examples illustrate and provide an understanding of what Frederick Schauer characterizes as the state's incompetence. These examples provide evidence not just of a clumsiness and an incapacity of courts and politicians to make discriminations; they also show how interests organize themselves behind laws and use the State to control others and to close down, where possible, certain visions of life and Truth. So there is a distrust of the State in the discourse on freedom of expression which takes the history of censorship as primary data on which to build a case for minimalist law. I turn now to the arguments from Democracy.


If some who argued for rights of free expression and speech relied heavily on their faith in the Imagination and a corresponding distrust of the capacities of judges and functionaries to make necessary though subtle distinctions, others relied even more heavily on specifically political arguments. At the heart of this theme was the aim to construct a democratic political system. Such an aim was not expressed in Milton's pamphlet. You should be able to see from the small portions of it that I have quoted that its aim was Truth, something that is calculated or proven rather than something ratified by a vote.

The democratic theorists who addressed most eloquently the place of a free press and free speech included early pamphleteers such as Trenchard and Gordon, and mavericks such as John Wilkes. But none would argue as persuasively as Jeremy Bentham, James Mill, and John Stuart Mill. James Mill wrote, for example, in defence of freedom of the press: "The point of greatest importance to [governments] is to keep the people at large from complaining, or from knowing or thinking that they have any ground of complaint. If this object is fully attained, they may then, without anxiety, and without trouble, riot in the pleasures of misrule" (James Mill, 1825, p. 16).

In James Mill's view the method of preventing governors from rioting in the pleasures of misrule would be to install a system of reporting and commentary on the activities of government. In his view these rights of reporting and commentary would be limited by very restricted notions of seditious libel and the law of civil defamation. The rest would be free territory. He wrote:

The end which is sought by allowing anything to be said in censure of the government, is to ensure the goodness of government.... If the goodness of government could be ensured by any preferable means, it is evident that all censure of the government ought to be prohibited. All discontent with the government is only good, in so far as it is a means of removing real cause of discontent.

Accordingly, he said, "the only means of removing the defects of a vicious government [is through] the freedom of the press" or, as he put it later in this same passage, the freedom of the press is "the greatest safeguard of the interests of mankind" (James Mill, 1825, p. 18).

This last phrase repeated a thought which had become an axiom in the political language of the eighteenth century. For at least a hundred years, pamphleteers had been saying that the press is "the palladium our our liberties"--a liberty in short which promoted other liberties. That idea survives. The Canadian political theorist Christian Bay has written that the "long-run protection of other freedoms in large measure depends on the protection and enlargement of [political speech]" (Bay, 1970, p. 136). That idea finds its most powerful expression in John Stuart Mill. He said in On Liberty that majorities cannot deprive minorities of their rights of free expression. He said the notion that the "people have no need to limit their power over themselves might seem axiomatic when popular government was a thing only dreamed about..." But in light of the serious aim of promoting individual human growth and the attendant benefits to all society, and in light of the requirements of a democracy, he said it is necessary to protect individuals, especially their thoughts and their views, from the majority. He went on to say:

The limitation... of the power over individuals loses none of its importance when the holders of power are regularly accountable to the community.... Protection... against the tyranny of the magistrate is not enough: there needs protection against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose... its own ideas and practices as rules of conduct on those who dissent from them (J. S. Mill, 1984, pp. 62-63).

In other words, the system could not be democratic if a democratic principle could be used to usurp the individual rights of expression and association on which the whole system was dependant.

What Mill and other liberal theorists said in one way or the other was that certain liberties or rights must be secure for a recognizably democratic system or process to occur. For example, there cannot be a democracy if the right to oppose is not secure; nor can there be a democracy if governments possess the power to define the meaning of political events and values; nor can there be a democracy if governments are not themselves governed by rules. Accordingly, a fundamental rule out of which democracies are constructed is the rule that says speech will be free.


John Stuart Mill wrote On Liberty in order to justify a radical expansion of intellectual and political freedom in nineteenth-century Britain. Part of that project involved formulating a principle to discipline and limit the power of the State to interfere with speech acts. But it also included a search for principles that could be used to justify interference. Mill accepted that there are some prerogatives which the State must possess in order to discharge its responsibilities and these included placing legal limits, however minimal, on speech. In our time, these may include laws to protect the functioning of the State and democratic institutions, or to maintain public order and public morality, or to protect individual rights. So the State's rights are part of the complex of rights within which the legal right of freedom of expression nests.

The task of defining the scope of the legal right of free expression, then, is two-step process. It involves developing, first and foremost, principles to justify freedom and then it involves developing principles to justify interference. But the principles must always be reciprocal--that is, principles which justify conferring a power in the State over speech can only be considered in the light of a corresponding understanding of what a citizen's power should be in a democratic society. We are now in a position to say more confidently what the extent and purpose of that power should be.

I said at the outset that legal rights of free expression and speech are mainly negative rights. I hope that by using Isaiah Berlin's words I am not inviting a negative view of them. When he says negative he means immunity. He means an area in which the State cannot interfere or compel someone to believe or say something they otherwise would not say or believe. These rights of free expression and speech are also core rights. That means they are regarded in a democratic society as fundamental in some sense and that, accordingly, they are regarded with a greater sense of deference and given greater weight than other rights. That sense of deference and weight comes from an understanding that the Imagination is the agent of Truth and invention and the organized record of human thought. It comes also from an understanding that the State's capacity for making judgments about Truth is not reliable, and from an understanding that the requirements of Democracy are such that individuals must possess almost absolute rights of political expression. These facts create a notional sum which constitutes the weight of the core right of freedom of expression.

So what justifies interference? For Mill, it was a notion of harm that could be clearly anticipated by certain speech acts. He said,

No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer.... Acts, of whatever kind, which without justifiable cause do harm to others may be, and in the important cases absolutely require to be, controlled by the unfavourable sentiments and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited.... (J. S. Mill, 1984, p. 119)

Mill's idea figures prominently in modern jurisprudence. Ivan Rand had something like it in mind as he wrote his decision in Boucher, the last seditious libel case in Canada, in which he ruled in effect that to incite a discussion, however passionate, is legal; to incite a riot--that is, to intend to incite a riot--is not legal.

But there are many problems in free-speech theory for which the standards laid down by Mill or Rand are only partly helpful. Canadian laws which restrict speech include official secrets and emergencies; seditious, defamatory, obscene, and even blasphemous libel; common law and statutory contempt, hate propaganda, provisions in the Broadcasting Act, human rights acts, and, of course, the laws of civil defamation. Each requires a different analysis. Still, Boucher and the others point to an objective standard of harm which it is in our interests to retain. It points to objective dangers and real harms rather than subjective feelings and passions. The latter seem now to be entering the legal system and not to its benefit. The emotions of fear and anger may seem like harms, but they are notoriously hard to measure and they are almost always partly rather than fully articulated to the events that stir them.

To an objective standard of harm should be added the lessons of history. Central to these lessons are the arguments for free expression mooted above, and central to them is the axiom or doctrine which follows from them--namely, that in matters of free expression the limited State is the best State. The price we pay for accepting this doctrine is that opportunities may be created for racists and pornographers. But this must be faced tragically if we are to preserve freedom. The situation for free speechers is akin, as Frederick Schauer has pointed out, to the one civil libertarians face in criminal law when they argue strenously for the maintenance of the doctrine of the presumption of innocence. That doctrine protects both the innocent and the guilty on the grounds that, as the seventeenth-century jurist Blackstone observed, it is better that nine who are guilty go free than one who is innocent be committed (Schauer, 1982, p. 139). The free-speech version of Blackstone's doctrine recognizes that there is a price to be paid for such freedom, but it also recognizes that there is a higher price to be paid for the reverse. Just as freedom creates opportunities for racists and pornographers, a coercive state creates opportunities for the enemies of Truth and Democracy.


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