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image: of print version of the Declaration of Independence

Holmes: "But when men have realized that time has upset many fighting faiths, they may come to believe ...that the best test of truth is the power of the thought to get itself accepted in the competition of the market..."(Abrams v. United States, 1919)

Brandeis: "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of evil apprehended is so imminent that it may befall before there is opportunity for full discussion. ...Only an emergency can justify repression. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assemblly by showing that there is no emergency justifying it." (Whitney v. California, 1927)

• The "Glorious" Revolution, 1688
• Lapse of the Licensing Act, 1695
• First Copyright: Law of Queen Anne, 1709
• Mandeville, The Fable of the Bees, 1704, 1714
• Addison and Steele, Spectator, 1711-1713
• Trenchard and Gordon: Cato's Letters 1722
• Declaration of Independence 1776
• First Amendment to the US Constitution & Sedition Act 1789-91

How did free speech become a sacred cow and censorship the "C-word"? In the century after 1688, there emerged in England and America a liberal democratic paradigm for conceptualizing the relationship between censorship, free speech and media. Although this paradigm has been subjected to probing critique (Gaines), it continues to provide the terms for many of our contemporary debates upon the proper uses and abuses of new media. There are three cardinal elements to this liberal democratic paradigm: the centrality of a market supposed to be free; the democratic concept of power as an empty place; and the radical claim to freedom of speech.

The centrality of a market supposed to be free. By granting state sanctioned monopolies to guilds and companies, Renaissance monarchs were able to profit from those enriched by a monopoly, and sustain a measure of control over the activities of production. Thus, for example, the Stationer's Company was given monopoly control to regulate the patent and copyright of individual booksellers and printers; in exchange the Company limited production to a limited number of London booksellers and exercised licensing powers on behalf of the state. Here, the regulation of trade and the censorship of writing go hand in hand. With the lapse of the Licensing Act in 1695, this formal legal arrangement broke down. Now protection for those who owned property in manuscripts was achieved through the first modern copyright law, the Law of Queen Anne (1709). During this period cultural observers began to conceptualize the remarkable powers of an unregulated market. Addison celebrated the ability of markets to draw every luxury in the world to the Royal Exchange where common interest would reconciles the differences of Arab, Jew and Gentile.(1711) Bernard Manderville isolated the paradoxical moral economy of markets: private vices (like greed and vanity) fueled the purchase of goods that produced public benefits, like unprecedented national wealth experienced by England. (1704) Over the course of the century, cultural critics worried that markets in print, through the cumulative effect of many isolated decisions to buy or not to buy, effectively circumvented earlier forms of cultural authority and performed designations of value beyond the reach of any guiding moral or aesthetic judgment. In the wake of the new ascendency of the market, the modern struggle between an improving higher culture and the more popular insistence upon being entertained, had been joined.

The democratic concept of power as an empty place. With the accession of William and Mary in 1688, decisive power shifted from the individual monarch to an elected body, the Parliament. John Locke is usually credited with conceptualizing a newly limited concept of government, one stated in the 2nd paragraph of the Declaration of Independence: that government draws its legitimacy from the people; government only exists to protect the prior rights of the individual (rights to life, liberty and property); when a government becomes destructive of these ends the people have the right to cast aside this government. There is another way to conceptualize limited government: instead of the power of the state being vested literally and symbolicly in the monarch's body, power was now located in an empty place--the persons and parties (Tory and Whig) of Parliement.(Lafort) This deplacement of the monarch's body puts a new importance upon the public exchange of discourse, whether in the form of speech, writing, or print. The flourishing of political journalism--both that sponsored by the parties in power, and that launched by opposition--becomes the discursive matrix for this interminable political negotation. Habermas has described this new political arrangement as depending upon rational debate in the public sphere--a medial zone between the State and the intimate sphere of family and work--where private citizens can confront the State and freely exchange opinions upon matters of importance to all. Limited government, the priority of individual rights, the free exchange of opinions, broad education of the citizenry, these are the basic components of the liberal ideal of public culture. This liberal ideological synthesis relies upon an analogy between economic and political circulation: the emergence of a public culture valuing the "free exchange of ideas" is coextensive with the emergence of modern unregulated markets for the "free exchange of goods." (See Holmes.) In a distinctly British and American ideal of the way the markets in goods and ideas should work, value (that is, "wealth" or "truth") appears to increase through the operation of a market system that is spontaneous, unsupervised, free and thus "natural."

The radical claim to freedom of speech The expansion of a public culture depends upon public-ation in print; but it leads to a claim to the primacy of the right to speech. Cato's Letters, the influential political journal of the 1720s written by Trenchard and Gordon, turns the freedom to speak into a radical test of a person's liberty and property in himself, and an indicator of the tyranny of others: "...in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own." The American nation is founded in a spectacularly successful enactment of free speech: a declaration of independence from England. By writing, signing, printing and distributing the Declaration of Independence, and by successfully countersigning that printed speech with blood, the "united states of america" started on its way to become the U.S.A. When the colonies forged a Constitution to formalize their union, worries about the abuse of power by this new central government led to the passing of the 1st Amendment to the Constitution. There, between the right to practice religion, and the rights peaceably to assemble and to petition for redress of grievances, freedom of speech is given protection. But this "right" is not won through the laws of the Legislature, but through a law against laws: "Congress shall pass no law...abridging the freedom of speech or the press,..." The abstract character and absolute value given freedom of speech by the 1st Amendment results in part from the double negative which protects it from definition and limitation by the state: Congress shall pass no law ...abridging it. In practice state courts and the Supreme Court have been called upon to define what is protected by this amendment and what is not. But the process of legal review during the two centuries since the ratification of the 1st Amendment has not narrowed what freedom of speech means; instead, judicial review has led to a dynamic expansion of the concept of free speech: first, in Madison's and Jefferson's battle against the Federalist's Sedition Act of 1798; much later, in a series of cases surrounding the Espionage Act of 1917 passed to limit protests against American participation in WWI, Justices Holmes and Brandeis developed the rationale for protecting the citizen's right to criticize their government, even in times of war; finally in 1933, Ulysses was cleared of the charge of obscenity because of its "redeeming aesthetic value;" even the right to take off one's clothes before an audience has been granted protection under the 1st Amendment.( ) These legal protections of speech helps explain why our newspapers daily report what I call "free speech incidents." These have three component elements: 1: the initial "speech" (the legal term for any act of expression) of a citizen; 2: some sort of action taken to punish speech and/or close down the space for further speech; 3: an appeal to a higher authority, usually a court, to recognize this punished speech as protected by the 1st Amendment of the US Constitution.