Читать книгу The Permission Society - Timothy Sandefur - Страница 11

CHAPTER THREE

PRIOR RESTRAINT OF SPEECH

WHEN WILLIAM BLACKSTONE boasted in his Commentaries on the Laws of England that the British enjoyed more freedom than the people of virtually any other nation in history, he was right. Not only did British subjects enjoy religious toleration, but they were also not required to obtain government permission before publishing a book, pamphlet, or newspaper. Writing in the 1760s, Blackstone viewed this rule against “previous restraints on speech” – what lawyers today call “prior restraint” – as one of the common law’s many noble protections for individual freedom.

But it was only in 1695, less than a century before Blackstone wrote, that British law prohibited prior restraints. Before then, the law required anyone wishing to print a book or pamphlet to first get permission from officials at the royal Stationer’s Company.¹ That requirement provoked one of the most famous episodes in the history of free speech when, in 1643, the poet John Milton published his scandalous pamphlet, The Doctrine and Discipline of Divorce, without a government license.

The 34-year-old Milton, already beginning to lose his sight, had married 16-year-old Mary Powell a year before. Chafing at life with her puritanical husband, Mary soon moved back in with her parents, prompting her husband to write the pamphlet arguing that divorce should be legalized – a shocking proposition in seventeenth-century England.² But the radical Milton believed that God had created marriage to cure man’s loneliness, not merely to breed children. Being married to an uncongenial person, a person with whom one had nothing in common and could not share life’s joys, only made loneliness worse. It was therefore more sinful, he maintained, to stay in an unhappy marriage than to separate. As for biblical passages proscribing divorce, they had just been misinterpreted.

These arguments scandalized the Puritan clergy. When the pamphlet was published, a member of the House of Commons denounced it and demanded that it be censored and burned. Milton had not even tried to obtain the required license before publishing, he noted. A disgusted Milton shot back with a new pamphlet, again unauthorized, called Areopagitica. To this day, it remains the most eloquent defense of free expression ever written.

Censorship was worse than murder, Milton wrote, for “who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God.” The idea that government should impose permit requirements on publishing to protect readers from bad or dangerous ideas was an insult to truth itself, which would always defeat falsehood “in a free and open encounter.”³

The idea of requiring approval from a government licenser before a book could be published struck Milton as not merely wrong, but un-English and anti-Protestant. The whole point of the Reformation, he thought, was to vindicate the right of believers to understand Christianity without the intercession of religious or political authorities. And the state of the Catholic countries he had toured as a student seemed to him evidence enough of the dangers of persecution. He recalled visiting the elderly Galileo in Italy, “a prisner to the Inquisition, for thinking in Astronomy otherwise then the Franciscan and Dominican licencers thought,” and he remembered how Europeans who learned he was from England had congratulated him on living in a country free of censorship. Milton had known at the time that this was untrue, but “neverthelesse I took it as a pledge of future happines, that other Nations were so perswaded of [England’s] liberty.” He was distressed now to discover “that what words of complaint I heard among lerned men of other [nations] utter’d against the Inquisition, the same I should hear by as lerned men at home utterd in time of Parlament against an order of licencing.”⁴

Milton’s arguments for abolishing the licensing requirement raise many of the same concerns about other types of permit requirements discussed in the previous chapter. The bureaucrats who enforced the licensing laws were a “mercenary crew of false pretenders to learning,” who often struck out important or inoffensive passages from manuscripts or demanded changes that only confused readers. Books emerged from censorship boring and full of mistakes. Banning books was counterproductive, in any event, because it only piqued people’s curiosity about what the forbidden writings contained. “[I]nstead of suppressing sects and schisms,” the prior restraint of the press “raises them and invests them with reputation.”⁵ In fact, if the government hoped to abolish improper or sinful writing, it would have to do much more than simply require licenses – it would also have to burn the many sinful books already in existence. And why stop there? Why not censor all personal behavior?

Prior restraints were unnecessary, Milton continued, because truth could defend itself.⁶ Books full of error and evil were still valuable as models of what to avoid. A people whose government did not let them see bad ideas would be intellectually disarmed if they ever encountered real sin. Such a government could at best cultivate only “a fugitive and cloister’d vertue, unexercis’d & unbreath’d,” that would “slink out of the race” if it ever crossed paths with a truly heretical idea. What good would that do? “Assuredly we bring not innocence into the world” when we try to shield people from the rough facts of life. Instead, “we bring impurity,” because “that which purifies us is triall, and triall is by what is contrary.”⁷ Worse, to put the government in charge of personal virtue encouraged people to be lazy about their own morals. “What need they torture their heads with that which others have tak’n so strictly[?]”⁸ A person who “is not trusted with his own actions” when it comes to reading would have no reason take his duties as a citizen seriously, since he could hardly “think himself reputed in the Commonwealth.”⁹

Eloquent as Milton’s arguments were, they failed to persuade. England kept its licensing requirement in place for another half century, and when at last it was abolished, it was not a bold vindication of individual freedom but an almost silent acquiescence on Parliament’s part. In 1695, the Licensing Act came up for renewal and was quietly allowed to lapse.¹⁰ Amazingly, this moment – the birth of free speech in the Anglo-American world, which the historian Thomas Macaulay said “has done more for liberty and for civilisation than the Great Charter or the Bill of Rights” – came without any eloquent appeal to the glorious cause of intellectual liberty. When the House of Commons explained its reasons for withholding renewal, it cited only the difficulty, expense, and embarrassment caused by trying to enforce the act. “Such were the arguments,” Macaulay wrote, “which did what Milton’s Areopagitica had failed to do.”¹¹

The First Amendment and Prior Restraints

The fact that Parliament’s abolition of prior restraint was no vindication of the principles of free expression is made still clearer by the limits that remained in place. British law still harshly punished blasphemy and sedition. Blackstone and other British lawyers argued that these rules did not contradict the freedom of press because they did not require government permission prior to publication – they only punished a person after publication.¹² Yet given how brutal these punishments could be, that seemed a dubious technicality. In 1792, Thomas Paine was tried in absentia for the crime of seditious libel for publishing his antimonarchical pamphlet Rights of Man and was sentenced to death. By that time, he had fled to France, never to return to the country of his birth. It seems silly to say that this was not a form of censorship.

Yet that was just the argument that President John Adams and his allies advanced in 1798 in support of the Sedition Act, a federal law that prohibited any “false, scandalous and malicious writing ... against the government of the United States, or either House of the Congress ... or the President.”¹³ The act was meant to target those whom Adams’s Federalist allies suspected of sympathy with French Revolutionaries, foremost among whom were Vice President Thomas Jefferson and his close ally, Congressman James Madison.

The two Virginians watched indignantly as the Adams administration jailed its critics, including a grandson of Benjamin Franklin and a Congressman from Vermont. When the Jeffersonians protested that the act violated the First Amendment, Adams’s supporters answered that the amendment only constitutionalized Blackstone’s rule against prior restraints. Since the Sedition Act only punished speech after the fact and did not require a permit before speaking, they claimed it was constitutional.

In a lengthy response known as the “Report of 1800,” Madison explained that punishing speech after it was uttered made a “mockery” of the First Amendment because it ignored “the difference between the nature of the British government, and the nature of the American governments.” That difference, once again, lay in the fact that under the British government, subjects only enjoyed freedom as a permission from the Crown, whereas the American Constitution presumed that all people are fundamentally free. “The state of the press ... under the [English] common law, cannot ... be the standard of its freedom in the United States.”¹⁴ While American law did include the rule against prior restraints, it also went further.

The British, wrote Madison, had always considered the king the most dangerous part of their government. Magna Carta, the English Bill of Rights, and other “ramparts for protecting the rights of the people” were therefore aimed only at the Crown, not Parliament, which was considered sovereign and “unlimited in its power; or, in their own language ... omnipotent.” The British people therefore had no rights valid against Parliament. The American Constitution was “altogether different.” Here, sovereignty was held by “the people, not the government,” and Congress did not have absolute or omnipotent power. The Constitution therefore protected the people against the legislative as well as executive branch. Individual rights were “secured, not by laws paramount to [royal] prerogative, but by constitutions paramount to laws.” This meant that not only were prior restraints forbidden, but so were “legislative restraint[s],” including punishments for the expression of opinion. It should come as no surprise, wrote Madison, that the First Amendment protected speech more than British law did: after all, the same amendment protected religious liberty far beyond the more limited “toleration” principle of British law. It was thus reasonable that the Constitution’s guarantees for speech would also be broader than the British tradition.

A friend of Madison, the prominent Virginia lawyer St. George Tucker, reiterated this point when he published an edition of Blackstone’s Commentaries in 1803. Tucker’s corrections and clarifications of Blackstone’s text were so extensive, they take up an entire extra volume. He explained that the “genuine freedom of the press” was to be found in the right of every person “to speak, or publish, his sentiments on the measures of the government ... without restraint, control, or fear of punishment.”¹⁵ Laws against libel or fraud were constitutional because they protected the rights of other citizens, but government officials could not use such laws to prosecute their critics.¹⁶ For the government to claim that it had been slandered, by punishing sedition, would mean destroying the essence of free discussion. The U.S. Constitution’s protections for freedom, therefore, went further than the old common-law system Blackstone was describing.

Today, American lawyers continue to argue over exactly how much protection the First Amendment provides. But the one thing they have always agreed upon is that, at a minimum, the Constitution forbids government from imposing prior restraints on speech, just as British law did in Madison’s time. That principle was tested most notably in two twentieth-century Supreme Court decisions, Near v. Minnesota in 1931¹⁷ and New York Times v. United States, also known as the Pentagon Papers case, in 1971.¹⁸

Near involved an anti-Semitic Minneapolis tabloid called The Saturday Press, which published sensational accusations of graft, corruption, and Jewish conspiracies. After a few issues appeared, featuring scurrilous claims of official wrongdoing, one of those accused, Floyd Olson, sued the publisher, arguing that the paper was a “public nuisance.” Olson, a crusading socialist lawyer who later became the state’s governor, argued that the allegations were false and that the paper’s attacks on Jews were likely to stir up violence and hatred – what would today be called “hate speech.”

The judge issued a temporary restraining order barring the Press from publishing any more issues until he decided whether it qualified as a nuisance. On appeal, the state supreme court allowed the case to proceed, declaring that a newspaper that encouraged hatred and violence could be as much a nuisance as a brothel or a liquor store. The case then went to trial, where the paper was declared a nuisance and prohibited from publishing. The case was appealed again, and this time the U.S. Supreme Court held the nuisance law unconstitutional because it allowed trial judges to issue injunctions that ran afoul of the rule against prior restraints. That rule was “generally, if not universally, considered ... the chief purpose” of the First Amendment.¹⁹

In the context of the case, this statement was odd because the lawsuit did not actually involve a prior restraint: Olson prosecuted the Press only after the paper was published, and the trial judge, after reviewing several issues, found that it had violated the law in the past. His order did not shut down the paper or require it to obtain permission before publishing future issues; it only prohibited any future illegal acts. Whatever else one might think of such a ruling, it simply was not a prior restraint. The Near decision is therefore an anomaly. Yet the facts of the case are today largely forgotten, and it has come to stand for the proposition that prior restraints on expression are virtually never allowed.²⁰

In 1971, that question arose again when the New York Times and the Washington Post began publishing a series of secret documents about the Pentagon’s plans regarding the Vietnam War that had been leaked by military analyst Daniel Ellsberg. After the Times and the Post printed some of the papers, the Nixon White House sued for an injunction to bar any more publications. This was a tactical mistake because it put the government in the position of asking the court to stop the printing – thus placing the burden of proof on the President’s lawyers. Had Nixon instead ordered the FBI to arrest the editors and impound the documents, the publishers would have had to ask a court for protection instead, placing the burden of proof on them.²¹ That was not the only tactical disadvantage Nixon faced. Because they based the lawsuit on the Espionage Act of 1917, federal lawyers were required to prove that the leaking and publication of the papers qualified as spying, which was a stretch. And unlike in the Near case, there was no question that the case involved a classic prior restraint. Nixon was seeking outright censorship of newsworthy documents.

The case rapidly reached the Supreme Court, which issued its ruling only five days after hearing arguments. It was a three-paragraph, unsigned decision, holding simply that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” and that “the Government ha[d] not met that burden.”²² This was followed by separate opinions in which each justice explained the basis for his ruling. Although the case produced no single landmark opinion, it was nevertheless a stunning moment in the history of the First Amendment.²³ The President of the United States could not stop the publication of sensitive military documents during wartime – a real testament to the law’s protections of free press. Unfortunately, as we will see in chapter 4, what the court described as a nearly airtight prohibition on prior restraints is actually nothing of the sort.

Is Free Speech an Individual or Collective Right?

James Madison viewed freedom of speech as more than merely a social institution. As important as open discussion may be in a democracy, Madison saw free speech as a personal right of all individuals. In a short 1792 essay about property rights, he noted that the word “property” refers not just to tangible objects but also to “every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.” This included a person’s ideas. Just as “a man’s land, or merchandize, or money is called his property,” so too “a man has a property in his opinions and the free communication of them” and “a property of peculiar value in his religious opinions.”²⁴

Freedom of speech or religion were therefore kinds of property. Both prior restraint and punishment after expressing unpopular views violated freedom of speech because they contradicted this basic element of personal liberty. Freedom was violated not only when a person was barred from speaking but also when he was forced to speak against his will – to pledge allegiance to a doctrine he detested or to spread a message with which he disagreed. As Jefferson wrote in the Virginia Statute for Religious Freedom, it is “sinful and tyrannical” for the government “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves.”²⁵

During the early twentieth century, however, political philosophers and judges came to reconsider the nature of free speech. Turning away from Madison’s individualistic views, such Progressive Era thinkers as John Dewey, Louis Brandeis, and Oliver Wendell Holmes saw the freedoms of speech or press not as property rights but as tools for ensuring that the public could reach wiser collective decisions. Thus, while some Progressives took important strides toward greater protections for free expression,²⁶ they also compromised it in a fundamental way, making it into an essentially public rather than private value. Speech, in their eyes, was a privilege the government gives citizens for society’s purposes, rather than an individual right the government must respect.

A key actor in this transition was Holmes, author of the renowned dissenting opinion in the 1919 free speech case Abrams v. United States.²⁷ That case involved the same 1917 Espionage Act that later formed the basis of the Pentagon Papers case. A group of communists who opposed American involvement in World War I had printed up antiwar flyers and thrown them from a fourth-floor window in Manhattan to passersby on the sidewalk. They were arrested and charged with trying to hinder the war effort, which the act prohibited. When the case reached the Supreme Court, the justices upheld the convictions 7–2.

Holmes had already written several opinions allowing the imprisonment of antiwar activists under the Sedition Act, including the Socialist Party’s presidential candidate, Eugene V. Debs. Yet he dissented in the Abrams case, and that dissent became a landmark of free speech law. In 2014, law professor Thomas Healy published The Great Dissent: How Oliver Wendell Holmes Changed His Mind and Changed the History of Free Speech in America, arguing that modern freedom of speech began with Holmes’s dissent – a view shared by most judges and law professors today. Andrew Cohen of The Atlantic was more effusive. Reviewing Healy’s book, he called Holmes’s opinion “the most powerful dissent in American history.”²⁸

That was surely an exaggeration – Justice John Marshall Harlan’s dissent in Plessy v. Ferguson,²⁹ Justice Harry Blackmun’s in Bowers v. Hardwick,³⁰ or Justice Stephen Field’s in the Slaughter-House Cases³¹ are all more eloquent and persuasive, and Holmes’s own wrongheaded but historic dissent in Lochner³² has proven more influential. But Holmes’s Abrams dissent is also far from the resounding declaration of individual liberty that one might imagine given this extravagant praise.

“Persecution for the expression of opinions,” Holmes declared in Abrams, “seems to me perfectly logical.”³³ This sentence could never have been written by Madison, Jefferson, or any of the classical liberals who gave birth to the First Amendment. Such words are actually a throwback to the pre-Constitution days of Puritan censorship, which regarded the expression of ideas as inherently dangerous. Yet they were typical of Holmes, who, like Jeremy Bentham, considered the founders’ principles of natural law and natural rights superstitious nonsense. In Holmes’s eyes, all law, all justice, all principles of right and wrong were nothing more than emotionalistic impulses, with no stronger foundation than one’s taste for a brand of beer. Democracy, he believed, uses the process of voting to aggregate people’s subjective preferences, and those desires for which people are willing to fight the hardest prevail – and become law. At bottom, law is not a process of reasoning but an arbitrary command from the majority.

Still, Holmes thought, the majority chooses not to persecute people for expressing their opinions – not because every person has a right to state his views, but because the majority benefits from a “free trade in ideas.” The Constitution protects the “effort to change the mind of the country” because “men have realized that time has upset many fighting faiths,” and open debate is a better way to avoid error. But this freedom of debate is only a privilege society gives to citizens to achieve collective goals, and Holmes emphasized how narrow that protection was when he declared that he “never ha[d] seen any reason to doubt” that his previous rulings allowing the imprisonment of dissenters – including Eugene Debs – “were rightly decided.”³⁴

This was exactly the opposite of the views of James Madison. The First Amendment’s author believed that persecution of opinion could never be logical or moral, because individual rights are not created at society’s pleasure but are like private property that government must respect. The “Sovereignty of the Society as vested in & exerciseable by the majority,” Madison wrote, may only do things “that could be rightfully done, by the unanimous concurrence of the members.” That meant the majority cannot legitimately violate natural rights – “Conscience for example” – which are always “beyond the legitimate reach of Sovereignty.”³⁵

For Madison, justice and injustice, right and wrong, were prior to – and therefore imposed limits on – the authority of the ruler, whether that ruler be a single dictator or a majority of voters. Himself a wartime president, Madison never sought to jail the many voluble critics of his administration’s efforts during the War of 1812, even when some went so far as to propose seceding from the union.³⁶ Holmes had no such scruples. According to his Abrams dissent, the majority comes first, and the individual has no rights beyond government’s reach. The majority determines what is right and wrong, and although it gives people a limited opportunity to speak their minds so that it can make more informed decisions, that opportunity is not a morally obligatory right. It is only a permission based on policy considerations that may be revoked when society thinks it necessary – for example, if it chooses to jail antiwar activists like Debs.

Holmes’s Abrams dissent also compares unfavorably to Jefferson’s Statute for Religious Freedom. Jefferson believed “God hath created the mind free” and that “attempts to influence it by temporal punishments or burthens” represented an “impious presumption of legislators and rulers,” who “have assumed dominion” of something that does not belong to them.³⁷ But for Holmes, the reverse was true. Like Bentham, Holmes believed that the individual does not own his own mind; it is only his because society has not chosen to take it away. Like any other resource, society may confiscate and distribute the individual’s freedom of conscience at will. It is the individual who “assumes dominion” – an unwarranted dominion – over his own mind, if and when he claims a right to his own self.³⁸

This is no overstatement. Holmes – who likened the notion of rights valid against government to “shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist”³⁹ – scoffed at the idea that people have a right to their own lives. “I don’t believe,” he wrote a friend, “that man always is an end in himself – that his dignity must be respected, etc.”⁴⁰ On the contrary, people belong presumptively to the state and may be conscripted into military service, deprived of their property⁴¹ or economic freedom,⁴² taxed,⁴³ censored,⁴⁴ or even forced to undergo sterilization⁴⁵ whenever society considers such acts necessary. “[T]he word liberty,” he wrote in his Lochner dissent, “is perverted when it is held to prevent the natural outcome of a dominant opinion.”⁴⁶ He viewed people as insignificant “ganglion[s]” or “grain[s] of sand” in the universe, who should “accept the vision of [them]selves as parts inseverable from the rest” – a vision that “justifies the sacrifice even of our lives for ends outside of ourselves.”⁴⁷

In short, Holmes supported the freedom of speech not to protect individual liberty but because he saw it as a useful tool for collective decision-making. The well-known metaphor of the “marketplace of ideas,” which originated in Holmes’s Abrams dissent, is revealing: speech is protected only when it is public. Speech that does not occur in the marketplace – or a person’s desire not to appear in the marketplace at all – could not claim protection. His Abrams opinion was therefore entirely consistent with his pro-censorship views in Eugene Debs’s case: together, they recast speech as a permission government grants and can revoke to serve politicians’ notion of the public good.