Earlier this month, I spent five thousand words explaining how the rule of law is much older than the political ideology of liberalism, and why that matters. In On the Law of Speaking Freely, Glasgow University’s John Millar Professor of Public Law, Adam Tomkins, does much the same thing in an opposed direction, and at book length.
That is, Tomkins recounts how freedom of speech was the last significant component of liberal constitutionalism to emerge. It has no ancient or medieval heritage. All the others—the rule of law is only one—have deep historical roots. Democracy? Classical Athens. Parliaments? Medieval England and Poland. Separation of powers? Roman. Representative government with directly elected representatives? Medieval England. The electoral college? Roman. Constitutional monarchy—i.e., the king is also bound by the laws—Medieval England and Scotland. The secret ballot? Roman. I could go on (and Tomkins does).
Freedom of speech, by contrast, only got out of the starting gate in Early Modern England, and took a couple of centuries to assume a form familiar to modern eyes. “Free speech is not an abstract principle that landed from nowhere,” Tomkins observes. “It had to be fought for—argued for.” One of the reasons the idea can look unfamiliar is because it emerged in temporally distinct stages—the “age of heresy,” the “age of sedition,” and the “age of offence”—and in response to historically contingent behaviours.
In The Law of Speaking Freely—a valuable account of the emergence of and global arguments around free expression—Tomkins does two things. First, he takes great care to put paid to the notion that ideas appear fully formed in a particular historical period or given civilisation, ready for us to pick up and use shorn of context. This excavation is necessary because it means he can do his second task, which is allowing readers to engage in imaginative entry to various historical periods. He then uses this background to illuminate contemporary speech controversies. Inevitably, his intellectual archaeology reveals the extent to which “simple” problems turn out to be much knottier than they appear. It also confers on readers the rare benefit of understanding historical figures on their own terms.
New forms of communication really do upend the world as it once was, for example. No lesser figures in the pantheon of English literature than Samuel Johnson and Jonathan Swift were appalled by the avalanche of complete nonsense that emanated from many of their fellow scribblers once printing became widespread in England. Both men advocated for a degree of control not only over speech but the press more widely that modern readers find shocking. Meanwhile, those who compare the Internet generally and social media specifically to the invention and dissemination of the printing press have a point.
While he is careful to note that none of the three “ages” he describes are over—“even now we still live in them”—debates over speech emerged in that order, can be dated precisely, and flowed from the pens of named and known individuals who left extensive public records. This has implications for how speech laws work across the UK, EU, United States, and wider Anglosphere.
Heresy
The first arguments surfaced during the Reformation, in response to claims and counterclaims of religious heresy. The printing press provided rocket fuel: freedom of religious conscience and how to manage it thus represented the first serious conflict over something that, to people now, was recognisably “freedom of speech.” In outlining this history, Tomkins is at pains to observe that it took a long time for people who complained about being persecuted for heresy to stop persecuting people they considered heretics in their turn. “Luther was no proponent of free speech as we would understand it today,” he notes. “He presided over book burnings himself, not least the public burning in Wittenberg of the papal bull by which he had been excommunicated.”
What makes Luther significant—along with the Protestant, Catholic, and Jewish religious dissidents who followed him—is the fact that words and being able to read them were the point of the Reformation. And if you wanted to be able to read certain words—in Luther’s case, the Bible, in German—you needed to be able to procure them.
This issue was temporarily resolved by the development of pre-publication licensing. A feature of the Confessional State—where entire national populations were expected to share their monarch’s religion—meant the print trade became a state-backed monopoly run on a system of permits, much like hunting and shooting in many places now. In England, for example, one had to go cap (or, rather, proposed book) in hand—I promise I’m not making this up—to the Worshipful Company of Stationers and apply for Crown approval. If your book was sanctioned, it was then printed and distributed by, you guessed it, the Worshipful Company of Stationers. Nice work for some, as my father used to say.
With the end of licensing came humanity’s first experience of an absolute avalanche of what we now call fake news.
Two of England’s greatest stylists—one a poet, the other a political theorist—took on the Company of Stationers and the State/Crown that stood behind them. The first of these men, John Milton, lost the argument but in the process produced an attack on licensing—Areopagitica—that is so inspiring and fluently written it can be and often is repurposed as a straight defence of freedom of speech, which is not the same thing. Milton had no problem with post-publication censorship. The second intervention came from none other than John Locke, who did win the argument (with his Letter Concerning Toleration), although, like Milton, his claims involved only pre-publication licensing. Locke also provided some useful economic analysis on the side, observing that the Stationers’ monopoly meant England’s books were printed using non-colourfast inks on cheap paper, and shoddily bound.
Licensing thus passed into history, to be replaced by something more familiar (at least to modern lawyers): the law of copyright. The Stationers’ Charter—which had codified its monopoly on book production—ensured that once a member had asserted ownership of a text or “copy” by having it approved, no other member was entitled to publish it. That is, no one else had the “right to copy” it. This is the origin of the term copyright. However, this right to copy was different from our modern law of copyright. The stationers’ copyright was a protection afforded to a book’s printers. The copyright the Statute of Anne introduced was, by contrast, a right granted to the book’s author and based on legislation. Intellectual property was thus born—fully formed as it were—in 1710.
Sedition
I have written as though the religiously-inflected leadership that licensed books in advance and compiled vast lists of banned materials (think the Catholic Church’s Index Librorum Prohibitorum)—policing unlicensed printers with an army of spies and wreckers while they were at it—was somehow separate from the state. This is a modern conceit. Church and state were intertwined over many centuries, and it was often difficult to tell where one ended and the other began. As, however, the state grew mighty relative to religion, whether Protestant or Catholic—an effect of Europe’s emerging technological and economic development—it needed a new tool, one without roots in licensing, to silence its critics. That tool was the law of seditious libel.
Seditious libel—which took powerful form by 1695—was expression that fell short of treason but was nonetheless criminal, despite not being violent. It was an offence to “incite by words or writings disaffection towards the state or constituted authority,” and was directed at protecting the great and good—or at least their reputations. “It is very necessary for every Government,” in Chief Justice Holt’s words, “that the people should have a good opinion of it.”
Seditious libel had roots in the law of defamation, which emerged in two civilisations (Roman and English) as a vehicle for the courts to prevent violent self-help in response to verbal or written reputational slights. To this day, many free speech absolutists object to defamation laws, because they do, in fact, curtail speech. This is why the US version is much weaker than varieties in other jurisdictions, although its presence is a reminder that even in the world’s freest speech jurisdiction, freedom is not absolute.
Punishment for seditious libel was three hours on the pillory, and it is the pillory that features on the book’s cover. As Tomkins recounts, the pillory could be downright dangerous if a given scribbler was unpopular, and it’s also worth remembering that other crimes were punished in the same way (famously, homosexuality). Onlookers’ ability to tell the difference should not be assumed, although famous and beloved writers—Daniel Defoe, for example—could and did experience three hours of enhanced popularity and public displays of affection.
Seditious libel—and what it was designed to prevent—provides one of Tomkins’s most splendid analogy engines, because with the end of licensing came humanity’s first experience of an absolute avalanche of what we now call fake news. Seditious libel was designed to stop the spread of conspiratorial nonsense. And the pernicious efforts of one lunatic individual were within living memory to give the law impetus.
A gay, defrocked clergyman, Titus Oates, was the author of some truly deluded nonsense, a kind of supercharged Early Modern Carl Beech. Today, the worst accusation you can make against a public figure is paedophilia. Then, it was Catholicism. Oates claimed there was a plot to overthrow Charles II, install his Catholic brother as King, and repress Protestantism by force. The “Popish Plot” was bunkum on par with Russiagate or QAnon, but in the moral panic that ensued, one set of politicians spotted an opportunity to dish their rivals, and the other banded together for self-defence (and afterwards revenge). While further examples of widespread fake news from the period can plausibly be blamed in part on the printing press—the Malleus Maleficarum was an early bestseller—Oates reached upwards to the great and good, revealing the extent to which elites can also fall prey to conspiracism. Some two dozen innocent Catholic aristocrats went to the gallows as traitors. Oliver Plunkett, the Catholic Archbishop of Armagh, was hanged, drawn, and quartered.
What is particularly notable is the heft of the people who—although opposed to licences for writers—remained convinced of the importance of seditious libel (or something like it) to stand athwart figures like Oates and yell STOP before they brought civil society down on itself. They included Johnson, Swift, Defoe—yes, despite his stint in the pillory—and Sir William Blackstone. Swift and Defoe in particular thought that seditious libel existed for witty and ironic writers—like them—to dodge around, plain-speaking ordinary folk be damned. This attitude probably contributed to them losing the argument. Mind you, their opponents were also individuals of courage and talent: John Wilkes, John Entick, and Thomas Paine.
A significant part of the gradual shift away from seditious libel was states learning—over time—to draw a meaningful distinction between words and deeds, speech and acts. Writing something that put a flea in the government’s ear came no longer to be seen as per se seditious, except insofar as it led to the common law offence of unlawful assembly. Already, the UK’s ongoing and awkward relationship with public order offences is visible on the horizon. Already, the reality that the truth doesn’t always out in the marketplace of ideas is apparent.
Offence
At first, Tomkins’s “age of offence” can look a bit like heresy redux—after all, religion in the haughty high morality of the Victorian era was a powerful force—but closer examination reveals the extent to which offence in its fight with freedom of speech leant on civil society and voluntary associations. It was the Society for the Suppression of Vice that, in 1819, brought a private prosecution against Richard Carlile for publishing Paine’s Age of Reason and Rights of Man. Carlile spent the next six years in gaol as a result.
However, private religion—in making use of blasphemous and obscene libel coupled with private prosecutions to get its moral way—opened the door to the kind of censorship with which we are all now familiar. That is, the public shaming of those whose words offend against whatever morality is dominant in the moment: call it cancel culture. The pillory was abolished in 1816. However, taking a man’s job from him for his views is probably as effective at bringing humiliation and calumnies down on his head as throwing rotten vegetables.
Hate speech legislation amounts to a confidence trick on Mill’s harm principle.
It is “social tyranny”—in John Stuart Mill’s words—that fuelled attacks on speech in his time (and ours), and it is with Mill’s words that modern people seek to defend freedom of speech against hounders and cancellers. The most important element, of course, inheres in Mill’s harm principle. That is, speech can only be interfered with (“restricted, censured, or censured” in Tomkins’s words) if it causes demonstrable harm to others. For Tomkins, mere offence can never reach this threshold, but he does admit the possibility of (narrowly defined) forms of hate speech doing so, which will no doubt put many American legal readers offside.
Hate Speech
For this reason, I set out Tomkins’s drafting rubric here. I also register my disagreement with it while recommending that people read and consider his wider argument in context. What he suggests may be the only politically acceptable fix to the vast mess that hate speech legislation has made in every Anglosphere and EU country save Australia and the United States. Australia, for its part, has a small hate speech mess—while the US has none—in part because Australia’s law on point follows Tomkins’s rubric quite closely:
My view, in the light of all the sources and contentions considered above, is that hate speech should be criminalised when, but only when, it meets all the following requirements. The words must be such that (1) a reasonable person would regard them as (2) threatening or abusive, where they are (3) expressed in public and (4) intended to stir up hatred on grounds of race, religion, sex, sexual orientation, or disability and (5) are unreasonable in the circumstances (having regard to the principle that freedom of expression may protect that which others may find offensive, shocking, or disturbing), noting that (6) discussion or criticism of questions of race, sex, sexual orientation, or disability is not to be taken as threatening or abusive and that (7) that neither discussion not criticism, nor expressions of antipathy, dislike, or ridicule as regards religion, are to be taken as threatening or abusive.
I mention Australia’s small hate speech mess, because its legislation—most famously section 18C of the Racial Discrimination Act 1975, but laws at state level are similar—adheres to Tomkins’s advice with two deviations. It allows for “offence” (while still demanding an objective standard), but it also treats hate speech as a mere civil wrong. Incitement is criminal in Australia, as are cognate offences like issuing a threat to life using a carriage service, but a lot of hate speech that is criminal in the UK and EU will, in Australia, only ever be the subject of a costs order (if that). Australia also has nothing akin to non-crime-hate-incidents.
However, even with those careful safeguards in place, 18C was used against a campaigning journalist, Andrew Bolt, in a 2011 case that generated enormous heat, leading to Tony Abbott taking its repeal into a federal election (which he won, becoming prime minister in 2013). The law, however, is still on the books. Abbott failed to do much of anything while he was prime minister, while the debate engendered was poisonous to civil society.
Tomkins bases his argument for hate speech legislation on the idea of power differentials. “Should the law offer more support for victims, knowing that those who are on the receiving end of threats and abuse are not always in a position to fight back, even with words?” he asks at one point. I often see this claim, and I’m alert enough to be able to detect Michel Foucault’s fingerprints all over it. The problem with it is that it’s not true. It’s also arguable—if Tom Holland’s historical understanding of Western Christianity is correct—that it hasn’t been true for something like a hundred years. Victimhood is so advantageous a status that people are quite happy to invent entire new categories of victim under which they can then shelter their politics—transactivism comes to mind—followed by assaying out based on such alleged victimhood to make enormous and intemperate demands of their fellow-citizens.
Hate speech legislation amounts to a confidence trick on Mill’s harm principle. That is, by subjectivising “harm” and including psychological damage in its remit, the space for free expression is eaten. The harm principle is no defence against people who insist on equating spiritual or psychological harm with physical violence. In turn, free speech advocates then find free expression difficult to defend because they must first accept the reality of “harm” before setting out any positive arguments of their own. Even without hate speech’s troubled introduction during the Weimar Republic and its post-war promotion—for thoroughly nefarious reasons—by the USSR, worrying at the boundary between words and acts in this way is fraught with danger. I’m unconvinced there’s a good form of hate speech legislation, only worse or better. And the “better” Australian example suggests it’s very hard to get right.
Liberal democracies are, I suspect, still struggling with freedom of speech as a guiding principle because of its youth. Tomkins is right to isolate it from other core components of liberal constitutionalism and point out that it’s still in the legal equivalent of cinema’s Development Hell. Other things both complex and difficult to manage—take the secret ballot, for example—have been around long enough to develop regular and settled usages in a way free speech hasn’t. The whole world has implemented Australia’s nineteenth-century re-purposing of the ancient Roman system, for example. That is, we have a secret ballot where—unlike the Roman method—electors do not bring their pre-filled ballot to the polling place, but a state official gives them an unmarked, pre-printed one before they enter the voting booth.
At some point, freedom of speech may have a regular and settled usage in much the same way. On the Law of Speaking Freely suggests that time is still somewhat distant.