Com Law Free Speech -- Unit 2 001a History of Free Speech

Communication Law and Free Speech

Philosophical Foundation of Freedom of Speech

  • Importance of philosophical basis in establishing freedom of speech as a fundamental human right.

  • Examination of censorship and its implications on free speech.

Brief History of Free Speech

  • Overview of the evolution of free speech throughout different periods and societies.

Overview of Freedom of Speech Narrative

  • Tension between liberty and order.

  • Romantic notion of the dissenting citizen speaking truth to power.

  • Impact of individual actions on social order.

  • Concept of "rights" as inalienable, existing prior to social contracts.

  • Historical development across cultures: Greece, Rome, Catholic Church, Reformation, England, and early US.

Ancient Athens

Freedom as Fundamental Values

  • Linked values: freedom of conscience, religious tolerance, freedom of speech, and press.

  • Athenian democracy (5th century): key role of "parrhesia" or "fearless speech" in democratic discourse.

    • Emphasis on citizen engagement in political matters.

  • Note on the significance of public discussion as a precursor to wise actions.

Rome and the Early Church

Historical Context of Speech Freedom

  • High degree of freedom under the Roman Republic until Augustus’ Empire.

  • Dissent restricted to imperial approval post-27 BC.

  • Ciceronian Tradition and its legacy in early American values.

Role of the Christian Church

  • Inherited the imperial framework; the Inquisition's rise to power.

  • Persecution of conversos in Spain and Portugal for practicing Judaism secretly.

  • Rediscovery of classical rhetoric encouraging debate and intellectual tolerance.

England: Struggle for Rights

Key Milestones

  • Magna Carta (1215): Established principles of due process and property rights.

  • Petition of Rights (1628): Addressed abuses by the monarchy; aimed to ensure fair legal processes.

  • Glorious Revolution (1688): Resulted in the English Bill of Rights, affirming parliamentary supremacy and limiting monarchical power.

Early Restrictions in England

Legislative Developments

  • English Bill of Rights (1689): Protected parliamentary debate but not general population.

  • 1701: House of Commons prohibited anti-parliament publications.

  • Trends towards freedom of speech evolved; gradual decline in seditious trials post-1775.

  • Sir William Blackstone’s assertion on freedom of speech against prior restraints.

General Concept of Libel

Historical Definitions

  • Seditious libel: Criticism of the government penalized without fair trial.

  • Transition of legal definitions of libel over time; truth not recognized as a defense until 1792.

  • Distinction of private and blasphemous libel with respect to religion.

  • Obscenity regulation influenced by societal changes and printing technology.

Free Speech in England Historical Context

  • Historical struggle against suppression by monarchy and the church.

  • Licensing regulations and parameters established for freedom of speech.

  • Transition in the 19th century towards a broader acceptance of free speech.

Free Speech in Early Republic

The Puritans and Dissenters

  • Puritan values towards religious freedom contrasted with intolerance for criticism.

  • Roger Williams’ advocacy for religious separation and acceptance of Jews in Rhode Island.

  • Importance of property rights and legal limits on executive power as foundations for free speech.

John Peter Zenger Trial

Landmark Case

  • Zenger’s publication criticized Governor Cosby, leading to libel charges.

  • First trial perceived bias resulted in a second trial with defense emphasizing truth.

  • Hamilton’s defense highlighted the importance of the trial as a matter of public interest.

Post-War Constitutional Debate

Formation of the Bill of Rights

  • Fear of federal power motivated the demand for the Bill of Rights.

  • James Wilson’s argument against its necessity; contending that Congress lacked power to restrict rights.

  • Madison’s concerns about delineating rights and implications of naming rights.

Early Republic and State Application

Challenges for the Bill of Rights

  • Lack of applicability at the state level and varied interpretations on core values like free speech and religious liberty.

  • Hamilton vs. Madison on the proper interpretation of constitutional powers.

Final Thought: Significance of Order

Implications of First Amendment

  • The first amendment prioritizes religious freedom, implying the precedence of liberty of conscience.

  • Concerns of religious strife guiding foundational ideals of governance; see implications for civil discourse and the power of factions.