Freedom of Expression: The History of a Concept and Its Limits

On 26 August 1789, the French National Assembly adopted the Declaration of the Rights of Man and of the Citizen, and its Article 11 proclaims: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom.” Read only this far, it sounds like a freedom without conditions. Yet the same article immediately adds a proviso: “but shall be responsible for such abuses of this freedom as shall be defined by law” (Yale Avalon Project). The clause that set freedom of expression at the heart of a modern human-rights document wrote the freedom and its boundary into a single sentence.

Watch the explainer video

Watch on YouTube

This article asks two questions. What was freedom of expression meant to protect? And where does it stop? Follow it from the Athenian assembly to English print shops, from the Swedish parliament and the US Supreme Court to the United Nations and the Constitutional Court of Korea, and the two questions almost always appear side by side.

Thought Cannot Be Bound, but Speech Carries Responsibility

Modern international law describes freedom of expression as several rights in layers. Article 19 of the 1948 Universal Declaration of Human Rights guarantees both the “freedom to hold opinions without interference” and the freedom “to seek, receive and impart information and ideas through any media and regardless of frontiers” (United Nations). The 1966 International Covenant on Civil and Political Rights (ICCPR) separates the two into different paragraphs. Article 19(1) sets out the right to hold opinions, Article 19(2) sets out freedom of expression, and Article 19(3), which permits restrictions, applies only to the rights in paragraph 2 (OHCHR). The opinions in a person’s mind may not be touched for any reason, while words and writing that go out into the world may be restricted under certain conditions.

The documents describe the grounds for restriction in similar language. The ICCPR says that freedom of expression “carries with it special duties and responsibilities,” and Article 10 of the 1950 European Convention on Human Rights likewise cites “duties and responsibilities” in allowing necessary restrictions prescribed by law (OHCHR; Council of Europe). Both echo the French declaration’s “responsibility for abuses.” The striking exception is the First Amendment to the US Constitution. Its words, “Congress shall make no law … abridging the freedom of speech, or of the press,” carry no proviso at all (US National Archives). Yet, as we will see, the US Supreme Court has also defined by case law the kind of incitement that can be punished. In the end, the dispute is not over whether the freedom exists but over where its boundary should be drawn.

Two Athenian Words: Isegoria and Parrhesia

Discussions of the roots of free expression often begin with ancient Athens. Athenian citizens gathered on the hill called the Pnyx for the Assembly, where they heard the city’s leading orators speak (Britannica). The Greeks had two words for freedom of speech. Isegoria meant the right of every qualified citizen to speak in formal bodies such as the Assembly and the Council on an equal footing with his peers. Parrhesia meant, at its root, the freedom to say anything, and, as one classicist notes, it thrived less in political institutions than on the comic stage of playwrights like Aristophanes (Antigone Journal). In today’s terms, the first is close to “an equal right to speak,” the second to “frank speech.”

Still, treating these ideas as the same thing as modern freedom of expression would be an overstatement. Those who could speak in the Assembly were qualified adult male citizens; women, enslaved people, and resident foreigners (metics) could not take that platform. Isegoria was tied less to shielding the individual from state power than to a citizen’s standing to take part in the community’s decisions. People could also be put on trial for what they said. The trial of Socrates in 399 BC is the best-known case, though some scholars argue that such trials were the exception rather than the rule (Antigone Journal). The path of free expression has been a series of breaks and redefinitions, not a single straight line running from antiquity to today.

The Printing Press, Censorship, and Milton

Freedom of expression in its modern sense became an urgent question with the printing press. In 1643 the English Parliament issued an order requiring government approval and licensing of all books before publication. The following year, 1644, the poet John Milton published Areopagitica in protest. Its title comes from the Areopagus, the “Hill of Ares,” where the high court of Athens once sat. Milton argued that imposing licensing followed the example of the papacy, and that trying to head off falsehood in advance underestimated the power of truth (Britannica). The pamphlet itself was printed without a licence.

It is counted among the classic defences of free expression in English, yet the pamphlet’s immediate goal, the repeal of licensing, was not achieved for another 50 years (Britannica). After the Restoration, licensing was entrenched again by the Licensing Act of 1662, and pre-publication censorship in England ended only when the House of Commons declined to renew that act and it expired in May 1695 (Primary Sources on Copyright). The seed of an idea did not grow straight into an institution.

Freedom Written into Law: Sweden and the United States

Institutional change came slowly. The English Bill of Rights of 1689 protected “the freedom of speech and debates or proceedings in Parliament,” but that was a privilege of members of Parliament, not a freedom of expression for ordinary subjects (legislation.gov.uk). The first country to go further in statute was Sweden. The Freedom of the Press Act passed by the Swedish parliament on 2 December 1766 abolished the censorship of all printed publications except those on academic and theological subjects, and it guaranteed public access to documents drawn up by government agencies. Even so, it kept severe punishments for writing against the state or the king, and it shifted responsibility for control from the public censor to publishers (Britannica). The First Amendment is often described as the world’s first guarantee of free expression, but the Swedish law came 25 years earlier.

The US Bill of Rights was ratified on 15 December 1791. On 25 September 1789 the First Congress had proposed 12 amendments to the states, and the clause on freedom of speech and the press was “Article the third” on that list. Because the first two articles were not ratified at the time, Articles three through twelve became the ten amendments of the Bill of Rights, and Article the third became the First Amendment. Article the second was finally ratified in 1992, 203 years after it was proposed, as the 27th Amendment (US National Archives). The US Constitution chose to forbid the state from infringing on expression. That differs in spirit from the French declaration, which set freedom and responsibility side by side, and the difference later became a fork in the road over where the line belongs.

Mill’s Harm Principle and the “Marketplace of Ideas”

In the 19th century, freedom of expression gained a philosophical foundation. In On Liberty (1859), John Stuart Mill set out what is known as the harm principle: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” In the book’s second chapter, on liberty of thought and discussion, Mill argued that because no one knows the whole truth, suppressing an idea may mean suppressing the truth, and that even false opinions test the truth and keep it from hardening into dogma (MTSU First Amendment Encyclopedia).

Even Mill drew a line. In the third chapter of On Liberty, he takes as an example the opinion that “corn-dealers are starvers of the poor.” Circulated through the press, he wrote, such an opinion ought to be left alone, but it may justly be punished when delivered orally to an excited mob gathered outside a corn-dealer’s house, or handed about among that mob as a placard (On Liberty, original text). The same sentence, in other words, should be treated differently depending on when it is said, to whom, and what it is likely to cause. The scene closely resembles the standard the US Supreme Court would set more than a century later.

The image of a “marketplace of ideas” is often associated with Mill, but the idea first appeared at the US Supreme Court in 1919. Dissenting in Abrams v. United States, Justice Oliver Wendell Holmes Jr. wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (MTSU First Amendment Encyclopedia). If Mill’s argument is the philosophical root of the metaphor, Holmes was the one who put it into the language of law.

The Boundaries Drawn by International Law

After two world wars, freedom of expression became an international human-rights norm. Article 19 of the Universal Declaration of Human Rights, adopted by the UN General Assembly in Paris on 10 December 1948, declares that “everyone has the right to freedom of opinion and expression.” The Universal Declaration, however, is not legally binding in itself (United Nations).

The binding treaty is the ICCPR, adopted on 16 December 1966 and in force since 23 March 1976. More than 170 countries are parties to it. Its Article 19(3) provides that restrictions on expression must be provided by law and must be necessary for respect of the rights or reputations of others, or for the protection of national security, public order, public health, or morals. Article 20 goes a step further and requires states to prohibit by law any propaganda for war and any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence (OHCHR; UN Treaty Collection). In Europe, Article 10 of the European Convention on Human Rights, signed in Rome on 4 November 1950 and in force from 1953, had already set out the same structure: because freedom of expression “carries with it duties and responsibilities,” it may be subject to restrictions prescribed by law and necessary in a democratic society (Council of Europe).

Where It Stops: Different Lines in America and Europe

So where exactly does the freedom stop? The test that follows from Article 19(3) of the ICCPR has three steps. Is the restriction based in law? Does it serve a legitimate aim? Is it truly necessary for that aim? Defamation, incitement to violence, hate speech, state secrets, and invasions of privacy are categories of restriction that many countries share.

But exactly where the line falls differs from country to country. The United States broadly protects even inflammatory speech. In Brandenburg v. Ohio (1969), the Supreme Court struck down the Ohio law under which a Ku Klux Klan leader had been convicted for a speech at a rally. Speech could be punished, the Court held, only where it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Cornell Legal Information Institute). That is a far narrower line than the “clear and present danger” test Justice Holmes set out in the 1919 Schenck case. By contrast, the ICCPR and many European countries impose a duty to prohibit incitement to hatred by law. The same speech can be protected under one legal system and punished under another. The point of setting these differences side by side is not to declare one side right, but to recognise that humanity has no single answer to the question of where the freedom stops.

Article 21 of the Korean Constitution: No Censorship, but Responsibility Remains

The Constitution of the Republic of Korea holds both traditions in a single article. Article 21(1) declares that all citizens enjoy freedom of speech and the press, and Article 21(2) states that “licensing or censorship of speech and the press … shall not be recognized.” The Constitution itself forbids the kind of pre-publication licensing Milton fought. At the same time, Article 21(4) provides that “neither speech nor the press shall violate the honor or rights of other persons or undermine public morals or social ethics,” and allows those harmed to claim damages. It echoes the French declaration’s “responsibility for abuses.” Article 37(2) adds a general rule: any freedom or right may be restricted by law only when necessary for national security, the maintenance of law and order, or public welfare, and even then its essential content may not be violated (Korea Law Translation Center).

What the article means in practice became clear in a decision of the Constitutional Court on 4 October 1996. The Motion Picture Act of the time required every film to be reviewed by the Public Performance Ethics Committee before screening, and made it a criminal offence to show a film that had not passed review. The Court ruled unanimously that this prior review was censorship forbidden by Article 21(2). Handing the review from a government ministry to a committee of private citizens did not change its nature, the Court said: because the state had designed the review by law, it was still censorship (Constitutional Court decision 93Hun-Ka13). The Court has also held that the censorship the Constitution forbids means prior censorship only, so holding speech to account after it has been made public does not fall under the ban (Constitutional Court decision 94Hun-Ka6). Blocking expression before publication is forbidden; holding it responsible after publication is allowed. In a sense, Milton’s protest of 1644 and the French declaration’s proviso of 1789 meet in this Korean ruling of 1996.

Freedom of expression is not a finished right handed down intact and inviolable from antiquity. It is a concept that has been redefined again and again: through the Athenian Assembly, the struggles over the printing press, the revolutionary declarations, the arguments of philosophers, the international norms written after two world wars, and the constitutions and court rulings of individual countries. Questions about its boundary have accompanied it all the way. Answers differ from country to country, yet one framework recurs across many documents: the thoughts in a person’s mind are left unbound, while the consequences of words that go out into the world can be held to account. If one belief runs through this long history, it is that human beings are made to seek the truth, keep their conscience, and speak to one another. What to protect and where to stop is never settled once and for all; it remains a question each generation must ask and answer again.

References

• Declaration of the Rights of Man (1789) — Yale Law School Avalon Project
• Universal Declaration of Human Rights — United Nations
• International Covenant on Civil and Political Rights — OHCHR
• ICCPR ratification status — UN Treaty Collection
• European Convention on Human Rights — Council of Europe / European Court of Human Rights
• Two Concepts of Free Speech — Antigone Journal
• Pnyx — Encyclopaedia Britannica
• Areopagitica — Encyclopaedia Britannica
• Commentary on the Licensing Act (1662) — Primary Sources on Copyright
• Bill of Rights 1689 — legislation.gov.uk
• Freedom of the Press Act of 1766 — Encyclopaedia Britannica
• The Bill of Rights and the 1789 Joint Resolution proposing 12 amendments — US National Archives
• On Liberty — MTSU Free Speech Center, First Amendment Encyclopedia
• John Stuart Mill, On Liberty (1859) — Project Gutenberg
• Marketplace of Ideas — MTSU Free Speech Center, First Amendment Encyclopedia
• Brandenburg v. Ohio, 395 U.S. 444 (1969) — Cornell Legal Information Institute
• Constitution of the Republic of Korea (Korean original) — National Law Information Center
• Constitution of the Republic of Korea (English translation) — Korea Law Translation Center
• Constitutional Court decision 93Hun-Ka13 (4 October 1996), in Korean — CaseNote
• Constitutional Court decision 94Hun-Ka6 (31 October 1996), in Korean — CaseNote

Watch the 1-minute Short

Watch the Short on YouTube