The Routledge Companion to Freedom of Expression and Censorship [1 ed.] 9780367205348, 9781032587110, 9780429262067

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THE ROUTLEDGE COMPANION TO FREEDOM OF EXPRESSION AND CENSORSHIP

The Routledge Companion to Freedom of Expression and Censorship offers a thorough exploration of the debates surrounding this contentious topic, considering the importance placed upon it in democratic societies and the reasons frequently proposed for limiting and constraining it. This volume addresses the various historical, philosophical, political and cultural parameters of censorship and freedom of expression as well as current debates involving technology, journalism and media regulation. Geographically, temporally and culturally diverse accounts of censorship and freedom of expression are discussed through a broad range of perspectives and case studies. This Companion covers core principles and concerns in addition to more specialist and controversial debates, including those surrounding hate speech, holocaust denial, pornography and so-called “cancel culture”. The collection pays particular attention to the role of the media in both facilitating and suppressing freedom of expression. Comprehensive, original and timely, The Routledge Companion to Freedom of Expression and Censorship is a go-to resource for scholars and advanced students of media, communication and journalism studies. John Steel is a Research Professor in Journalism in the School of Humanities and Journalism at the University of Derby. He has published in the areas of journalism and media history, journalism and its relationship to and with the public as well as journalism ethics and freedom of the press. Julian Petley is Honorary and Emeritus Professor of Journalism in the Department of Social Sciences, Media and Communications at Brunel University London. He has a particular interest in media regulation of all kinds, and has published widely in this area. He is a member of the editorial boards of the British Journalism Review, Ethical Space and Porn Studies, and editor-in-chief of The Journal of British Cinema and Television.

THE ROUTLEDGE COMPANION TO FREEDOM OF EXPRESSION AND CENSORSHIP

Edited by John Steel and Julian Petley

Designed cover image: WhataWin / iStock via Getty Images First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, John Steel and Julian Petley; individual chapters, the contributors The right of John Steel and Julian Petley to be identifed as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifcation and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Steel, John, 1966- editor. | Petley, Julian, editor. Title: The Routledge companion to freedom of expression and censorship / edited by John Steel and Julian Petley. Description: Abingdon, Oxon [UK] ; New York, NY : Routledge, 2023. | Series: Routledge media and cultural studies companions | Includes bibliographical references and index. Identifers: LCCN 2023033613 (print) | LCCN 2023033614 (ebook) | ISBN 9780367205348 (hardback) | ISBN 9781032587110 (paperback) | ISBN 9780429262067 (ebook) Subjects: LCSH: Freedom of expression. | Censorship. Classifcation: LCC K3253 .R68 2023 (print) | LCC K3253 (ebook) | DDC 323.44--dc23/eng/20230928 LC record available at https://lccn.loc.gov/2023033613 LC ebook record available at https://lccn.loc.gov/2023033614 ISBN: 9780367205348 (hbk) ISBN: 9781032587110 (pbk) ISBN: 9780429262067 (ebk) DOI: 10.4324/9780429262067 Typeset in Galliard by Deanta Global Publishing Services, Chennai, India

CONTENTS

List of Contributors

ix

Introduction: Censorship and freedom of expression in turbulent times John Steel and Julian Petley PART I

1

Concepts and histories

11

1

Freedom of expression as a pre-Enlightenment concept Jordi Pujol

13

2

Freedom of expression, the Enlightenment and the liberal tradition Geoff Kemp

23

3

Histories of in/tolerance Russell Blackford

36

4

Literary infuence and legal precedent: Censorship in the Court of Chancery, 1710–1823 Paul Whickman

5

The limits of Mill’s case for free discussion Kristoffer Ahlstrom-Vij

56

6

Autonomy and freedom of expression Eric Barendt

66

v

46

Contents

7

Bentham and security against “misrule” Jesse Owen Hearns-Branaman

75

8

Freedom of expression in the twentieth century Sue Curry Jansen

85

9

Philosophies of censorship and control Eric Barendt

96

PART II

Global perspectives

107

10 Freedom of expression in Latin America in times of populism: Between Western normative expectations and the complexities on the ground Ezequiel Korin and Jairo Lugo-Ocando 11 Protecting the pandemic press: Exploring press freedom in Africa during the COVID-19 era Bruce Mutsvairo and Kristin Skare Orgeret

109

119

12 Freedom of speech in the Arab region Noha Mellor

128

13 Censorship and freedom of expression in China “Chris” Fei Shen and Weiying Shi

138

14 Between speech freedom and national interests: The contested boundaries of online freedom of expression in China Yuan Zeng and Tongzhou Ran

153

15 Conservative sensibilities and freedom of expression in Japan: A brief historical overview Ryusaku Yamada

163

16 Freedom of expression in French laws and society Imen Neffati

173

17 Faith and toleration in neoliberal times: Australia as a Case Study Adam Possamai

183

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Contents PART III

Key controversies

193

18 The harm in hate speech and in Holocaust denial Raphael Cohen-Almagor

195

19 The regulation of pornography, obscenity and indecency in UK law Julian Petley

208

20 Political correctness: The Right’s Favourite Bugaboo Valerie Scatamburlo-D’Annibale

222

21 Free speech, “Cancel culture” and the “War on woke” John Steel

232

22 Academic freedom and constrained expression Thomas Docherty

245

23 Breaking news – media freedom in crisis Simon Dawes

254

24 P2P speech regulation: Gossip, reputation and norm policing on social media Julie Seaman

262

25 Vitriol and voice: Battlegrounds to control employee expression on social media in work Claire Taylor

274

26 Hack attacks: How cyber intimidation and conspiracy theories drive the spiral of “secrecy hacking” Emma L. Briant

285

27 Violence, impunity and their impact on press freedom Lada Trifonova Price PART IV

296

Institutions, technologies and frameworks

307

28 Online censorship: The role of the intermediaries Julian Petley

309

vii

Contents

29 Freedom of expression and human rights: Interrogating the focus at Strasbourg on political expression under Article 10 ECHR Helen Fenwick 30 Balancing public and private interests in freedom of expression: A case study of Whistleblower Protection in the case law of the European Court of Human Rights Dimitrios Kagiaros 31 Crying wolf: Invoking “national security” as grounds for censorship Paul Lashmar 32 Marketing communications and media: Commercial Speech, Censorship and Control Jonathan Hardy

324

334 346

358

33 The regulation of the press: Some considerations on principles and power 368 Tom O’Malley 34 Freedom of the press in Britain: From radical to reactionary…to reinvigoration? Aaron Ackerley

379

35 “Should I stay (on X) or should I go?” Three causes of journalistic selfcensorship on X Chrysi Dagoula

389

36 All the news that’s ft to report? News values and the “free press” Tony Harcup

399

Index

409

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LIST OF CONTRIBUTORS

Aaron Ackerley is a historian of modern Britain and the British empire. In particular, his work focuses on questions of knowledge and power, such as intersections between elite and popular political cultures and the media. He is a lecturer at NTNU in Trondheim. Aaron has had research published on topics such as the coverage of radical politics in British interwar quality newspapers, the history of free speech and the British press, and imperialist youth movements. Christopher Ahlström Vij is Reader and Chair in Philosophy at Birkbeck College, Research Fellow at the National Institute of Economic and Social Research (NIESR), and Research Associate at LSE’s Centre for Philosophy of Natural and Social Science (CPNSS). Prior to working at Birkbeck he was Senior Lecturer at the University of Kent, Canterbury (2012– 17), and a post doc at Rutgers University and the University of Copenhagen. He is the co-editor of Epistemic Consequentialism (2018) and the author of Epistemic Paternalism: a Defence (2013). Eric Barendt, Emeritus Professor of Law, was the Goodman Professor of Media Law at University College London, 1990-2010. He is the author of  Freedom of Speech (2005/2007), Academic Freedom and the Law (2010), and Anonymous Speech (2016), as well as a number of articles on libel, and privacy law. He has been a Visiting Professor at La Sapienza, Rome, Paris II, and the Universities of Melbourne, Auckland, and Hong Kong. In 2012 he was a Special Legal Adviser to the Joint Committee of the House of Lords and Commons on Privacy and Injunctions. Russell Blackford is a Conjoint Senior Lecturer in Philosophy at the University of Newcastle, Australia, and Deputy Editor of The Philosophers’ Magazine. He is the author of numerous books, mainly in legal, moral, and political philosophy, and in philosophical bioethics. These include Freedom of Religion and the Secular State (2012), Humanity Enhanced: Genetic Choice and the Challenge for Liberal Democracies (2014), The Mystery of Moral Authority (2016), Science Fiction and the Moral Imagination: Visions, Minds, Ethics (2017), The Tyranny of Opinion: Conformity and the Future of Liberalism (2019), and At the Dawn of a Great Transition: The Question of Radical Enhancement (2021). ix

List of Contributors

Emma L Briant is a scholar who researches contemporary propaganda and information warfare, and its governance in an age of mass-surveillance. She is Associate Professor of News and Political Communication at Monash University, Melbourne, a Fellow at Bard College and Associate at University of Cambridge Centre for Financial Reporting & Accountability. Dr. Briant regularly contributes journalism and op-eds to major outlets and has two books Bad News for Refugees, (Pluto Press, 2013, co-authored with Greg Philo and Pauline Donald) and Propaganda and Counter-Terrorism: Strategies for Global Change (Manchester University Press, 2015). She has served as advisor for several documentary flms including, as Senior Researcher for Oscar-shortlisted  Netfix flm  ‘The Great Hack’.  She is now  fnalizing her third book Propaganda Machine and working on a fourth the co-edited Routledge Handbook on the Infuence Industry with Vian Bakir, Bangor University, UK. Raphael Cohen-Almagor, DPhil, St. Catherine’s College, University of Oxford; Professor of Politics, Founding Director of the Middle East Study Centre, University of Hull, and Global Fellow of the Woodrow Wilson International Center for Scholars. Raphael taught, inter alia, at Oxford (UK), Jerusalem, Haifa (Israel), UCLA, Johns Hopkins (USA) and Nirma University (India). He was also Senior Fellow at the Woodrow Wilson International Center for Scholars, Washington DC, and Distinguished Visiting Professor, Faculty of Laws, University College London. In 2022, he was a Public Policy Fellow at the Woodrow Wilson International Center for Scholars, and in 2023 he is The Olof Palme Visiting Professor, Lund University, Sweden. Raphael has published 19 books and more than 300 articles in the felds of politics, philosophy, media ethics, medical ethics, law, sociology, history and poetry, including most recently Confronting the internet’s Dark Side (CUP, 2015), Just, Reasonable Multiculturalism (CUP, 2021) and The Republic, Secularism and Security (Springer, 2022). He is now writing Resolving the Israeli-Palestinian Confict: A Critical Study of Peace Mediation, Facilitation and Negotiations between Israel and the PLO. Raphael was a co-founder of Israel’s “Second Generation to the Holocaust and Heroism Remembrance” Organization, the founder of The University of Haifa Center for Democratic Studies, and the founder of The Van Leer Jerusalem Institute Medical Ethics Think-tank. Presently he is the Founding-Director of The University of Hull Middle East Study Centre. Sue Curry Jansen is Emeritus Professor in Media and Communication at Muhlenberg College, Pennsylvania. Her work focuses on freedom of expression and obstacles to it, the sociology of knowledge, propaganda, gender and technology, and the intellectual history of the Progressive Era. Her most recent book, Stealth Communications: The Spectacular Rise of Public Relations (2017) examines the relationship of democracy and PR, the role of PR fxers in international affairs, the role of PR in social movements, and efforts to reform it. Chrysi Dagoula is an Assistant Professor of International Media and Communications Studies at the Department of Cultural, Media and Visual Studies, at the University of Nottingham. Her research is in journalism, social media, and social and political change. She is the author of News Journalism and Twitter: Disruption, Adaption and Normalisation (2023, Routledge). She is also the author of Mapping the Greek Journalistic Twitter: a theoretical and practical approach (2019, Metamesonykties) and the co-editor of the volume 6+1 Proposals for Journalism: Safeguarding the Field in the Digital Era (2022, Intellect Books). x

List of Contributors

Simon Dawes is Maître de conférences (Senior Lecturer) at Université de Versailles SaintQuentin-en-Yvelines (UVSQ), France. He is the author of British Broadcasting and the PublicPrivate Dichotomy: Neoliberalism, Citizenship and the Public Sphere  (Palgrave Macmillan, 2017) and co-editor (with Marc Lenormand) of  Neoliberalism in Context: Governance, Subjectivity and Knowledge  (Palgrave Macmillan, 2019). He is also the founding editor of the open access journal, Media Theory, and the editor-in-chief of French Cultural Studies. Thomas Docherty is Emeritus Professor of English and of Comparative Literature at the University of Warwick. He has published on many areas of English and comparative literature from the renaissance to the present day, and he specialises in the philosophy of literary criticism, in critical theory, and in cultural history in relation primarily to European philosophy and literatures. A key strand of his recent work has concentrated on matters of cultural policy related to international higher education – for example, The New Treason of the Intellectuals (2018), Universities at War (2014) and For the University (2011). ‘Chris’ Fei Shen is associate professor in the Department of Media and Communication, City University of Hong Kong. His research covers a wide range of topics, including public opinion, political communication, new media, audience and consumer behaviour analysis, computational social sciences, and health/science communication. He won the Google Faculty Research Award in 2014 and the Facebook Foundational Integrity Research Award in 2020 and during 2015-2016 he was a Faculty Associate at the Berkman Klein Center, Harvard University. He was the associate editor of Communication Methods and Measures and is currently the associate editor of the Asian Journal of Communication. Helen Fenwick, LLB, BA, is Professor of Law at Durham University Law School, and a Human Rights Academic Consultant to Doughty Street Chambers. She specialises in human rights, especially in relation to freedom of expression and the ECHR. She is author of Media Freedom under the Human Rights Act (OUP 2006, with G Phillipson); Volume 88A Fifth Edition, Halsbury’s Laws of England new section ‘Rights and Freedoms’ (2013); Civil Liberties and Human Rights (Routledge, 5th edn 2017). Recent journal articles include ‘Protecting free speech and academic freedom in universities’ (with I Cram) (2018) 81(5) Modern Law Review 825-873; ‘Prevent, free speech, ‘extremism’ and counter-terror interventions: exploring narratives about chilling expression in schools’ [2020] Public Law 661-679, with D Fenwick; ‘Exploring narratives about ‘Cancel Culture’ in UK educational/employment settings under the ECHR’ 2022 in European Yearbook on Human Rights, P Czech, editor (2022); Vol 73 NILQ No AD1 26-73 (with F Brimblecombe) ‘Protecting private information in the digital era: making the most effective use of the availability of the actions under the GDPR/DPA and the tort of misuse of private information’; ‘Keeping Control of personal information in the digital age: effcacy and equivalence of tortious and GDPR/ DPA relief’ 138 Law Quarterly Review Issue 3, July 2022, 455-479 (with F Brimblecombe). Tony Harcup is an Emeritus Fellow in Journalism Studies at the University of Sheffeld in the UK. Before becoming a journalism educator, he spent decades working as a staff and freelance journalist within both mainstream and alternative news media. His research on journalism ethics, alternative journalism, journalism practice and journalism training has been published in journals such as Journalism Studies, Digital Journalism, Journalism: Theory, Practice and Criticism and Communication, Culture & Critique. Tony’s studies of news valxi

List of Contributors

ues, co-authored with Deirdre O’Neill, have been widely cited by scholars around the world. His single-authored books include Alternative Journalism, Alternative Voices (2013), the Oxford Dictionary of Journalism (2014), What’s the Point of News? (2020) and Journalism: Principles and Practice (2022). He is a Life Member of the National Union of Journalists. Jonathan Hardy Professor of Communications and Media at London College of Communication, part of the University of the Arts London. His books include  Branded Content: The Fateful Merging of Media and Marketing  (2022),  Critical Political Economy of the Media  (2014),  Cross-Media Promotion  (2010) and  Western Media Systems (2008). He is editor of Sponsored Editorial Content in Digital Journalism (2023), co-editor of The Advertising Handbook  (2009/2018) and series editor for Routledge Critical Advertising Studies. Jesse Owen Hearns-Branaman is Head of the Department of Communication and Associate Professor of International Journalism at Beijing Normal University-Hong Kong Baptist University United International College. He holds a PhD from the University of Leeds. He has taught communication, media, and journalism studies at the University of Sheffeld and University of Leeds in the UK, the University of Nottingham in China, and the National Institute of Development Administration in Thailand. His research interests include post-structuralism, ideology, critical linguistics, political economy of news, comparative journalism, tourism, and epistemological theory. He has published three books, Journalism and Foreign Policy: How the US and UK Media Cover Offcial Enemies (2022), Journalism and the Philosophy of Truth: Beyond Objectivity and Balance(2016), and The Political Economy of News in China: Manufacturing Harmony (2015). Dimitrios Kagiaros is an Assistant Professor in Public Law and Human Rights at the University of Durham. His research focuses on the case law of the European Court of Human Rights in relation to Freedom of Expression and, in particular, the Court’s framework for the protection of whistleblowers under Article 10 ECHR. He has also published on the use of European Consensus by the European Court of Human Rights, and the potential for ECHR rights to protect individuals from destitution. He serves as a member of the editorial board of The European Convention on Human Rights Law Review. Geoff Kemp is Senior Lecturer in Politics at the University of Auckland. He gained his PhD at King’s College, Cambridge. His publications include an account of Locke’s writings on liberty of the press in John Locke, Literary and Historical Writings (2019) the edited volume Censorship Moments (2014) and he is general editor, with Jason McElligott, of the fourvolume collection Censorship and the Press, 1580-1720 (2009). A recent article is “Politics, Law, and Constructive Authorship: John Freke and ‘The Most Infamous Libel That Ever Was Written’,” Huntington Library Quarterly, 84 (2021) 745-81. Ezequiel Korin  is a communications and marketing practitioner with nearly thirty years of experience across several industries. As a former assistant professor of journalism and media production, Dr. Korin’s research interests include censorship, newsroom practices in Latin America, and digital communication among Spanish-speaking diasporic communities.

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Paul Lashmar is a former Head of the Department of Journalism at City, University of London (2019-2021). He is a Reader in Journalism, and his research interests include media freedom, investigative journalism, intelligence-media relations and organised crime reporting. He has been an investigative journalist since 1978 and has been on the staff of  the Observer, Granada Television’s World in Action current affairs series and The Independent. He is currently writing a history of the Drax family of Dorset. Recent books include Spies, Spin and the Fourth Estate: British Intelligence and the Media (2020) and Investigative Journalism, third edition, co-edited with Hugo De Burgh (2021). Jairo Lugo-Ocando, PhD  is a Professor in Journalism Studies and current Dean of the College of Communication at the University of Sharjah, U.A.E. He is author of several academic books, peer reviewed journal articles and other academic publications. His recent titles include, ‘Science Journalism in the Arab World. The Quest for ‘Ilm’ and Truth’ (Palgrave, 2023) ‘The News Media in Puerto Rico. Journalism in Colonial Settings and in Times of Crises’ (Routledge, 2020), ‘Media & Governance in Latin America. Towards a Plurality of Voices’ (Peter Lang, 2020) and ‘Foreign Aid and Journalism in the Global South. A Mouthpiece for Truth’ (Lexington Books, 2020). He worked as a journalist, correspondent and news editor for several media outlets in Latin America and continues to be engaged with the mainstream news media as regular commentator of Al-Jazeera and columnist in several newspapers. Noha Mellor is a Professor in Media at the University of Sharjah, UAE. She is the author or editor of numerous books about Arab media, including Arab Digital Journalism (Routledge, 2022), and Routledge Handbook on Arab Media (Routledge, 2020). Bruce Mutsvairo, PhD, is a Professor in the Department of Media and Culture at the University of Utrecht, The Netherlands. His research focusses on three main areas: the interplay between journalism, media and democracy; the intersection of press freedom, safety of journalists and confict; digital and data dissidents, citizen journalists and activists’ use of online-based technologies, including social media platforms to infuence political change under the prevailing misinformation ecology. A former journalist with the Associated Press, he has published numerous scholarly books. He edits and curates the Oxford Bibliographies’ spotlight platform for the Global South on behalf of Oxford University Press. He also co-edits the Palgrave/IAMCR book series  Global Transformations in Media and Communication Research and the Palgrave Studies in Journalism and the Global South, which he co-founded. In 2023, he launched a new Brill book series Technology, Power and Society together with UU colleagues Dennis Nguyen and Jing Zeng. Imen Neffati is a historian of contemporary France, interested in racial, religious and gender identities and how they intersect. She is a Junior Research Fellow at Pembroke College, University of Oxford where she is fnishing her frst monograph: a critical biography of the French satirical magazine Charlie Hebdo  focusing on the three principles of liberté, laïcité, and fraternité. Tom O’Malley is Emeritus Professor of Media, Aberystwyth University and writes on press and broadcasting history. His publications include: Closedown? The BBC and Government Broadcasting Policy, 1979-1992 (1994); with Clive Soley, Regulating The Press (2000); with xiii

List of Contributors

David Barlow and Phillip Mitchell, The Media in Wales (2005); with Janet Jones (eds)The Peacock Committee and UK Broadcasting Policy (2009);with Siân Nicholas (eds) Moral Panics, Social Fears, and the Media (2013) and Newspapers, War and Society in the 20th Century (2019). He co-founded the journal Media History and is currently completing a study of the UK press in the Second World War. Julian Petley During his career, Julian has moved back and forth between working in the media and teaching about the media, and although  he has  been a full-time academic for the past twenty-six years  he is  still an active freelance journalist, now publishing mainly online in sites such as Open Democracy, The Conversation, and Inforrm. He is also a member of the editorial board of the British Journalism Review and of the advisory board of Index on Censorship. As a member of the National Council of the Campaign for Press and Broadcasting Freedom and a supporter of Hacked Off he actively campaigns for media which are both free from restrictions which stop them from performing their proper social functions but, equally importantly, behave responsibly and display the same degree of openness and public accountability which they habitually demand from other institutions. This work involves making numerous submissions to offcial enquiries of one kind or another (including the Leveson Inquiry), giving evidence to parliamentary select committees, liaising with like-minded civil society groups, and maintaining a high media profle. Adam Possamai is Professor of Sociology and Deputy Dean of the School of Social Sciences at Western Sydney University. He has recently edited with Anthony Blasi, The Sage Encyclopedia of the Sociology of Religion  (2020) and with Giuseppe Giordan,  The Social Scientifc Study of Exorcism in Christianity  (Springer, 2020). He is the author of Religion and Change in Australia (with David Tittensor, Routledge, 2022) and The i-zation of Society, Religion, and neoliberal Post-Secularism (Palgrave MacMillan, 2018). Jordi Pujol, PhD is Associate Professor of Media Ethics and Law at the School of Church Communications (Pontifcal University of Santa Croce, Rome). He is a catholic priest originally from Barcelona (1975). His research is particularly focused on three areas:  Ethical dilemmas related to freedom of expression in Europe and the U.S., and the challenges of exercising freedom of expression online. Latest book: The Collapse of Freedom of Expression: Reconstructing the Foundations of Modern Liberty (University of Notre Dame Press, 2022). Transparency and Church communications. The right to information within the Church, particularly in areas such as abuse and governance. Latest book: Trasparenza e Segreto nella Chiesa Cattolica (Venezia: Marcianum Press, 2022). Privacy, digital identity and data protection, particularly the impact of the GDPR in Church governance. Latest book: Chiesa e protezione dei dati personali (Roma: Edizioni Santa Croce, 2019). Tongzhou Ran is a third-year Ph.D. student at the School of Media and Communication, University of Leeds. His Ph.D. project studies the representation of the West in Chinese state media. He is interested in nationalism, Chinese politics, and postcolonialism in China. Valerie Scatamburlo-D’Annibale is an award-winning author and educator in the Department of Communication, Media and Film at the University of Windsor in Ontario, Canada and currently serves as Chair of the Graduate Program in Communication and Social Justice. She is the author of Soldiers of Misfortune: The New Right’s Culture War and the xiv

List of Contributors

Politics of Political Correctness (1998) and Cold Breezes and Idiot Winds: Patriotic Correctness and the post-9/11 Assault on Academe (2011), both of which examine right-wing ‘culture wars’ and the corporate-sponsored infrastructures that have historically supported and enabled them. She has also published more than 30 book chapters and journal articles on topics ranging from social theory and critical pedagogy to the right’s weaponization of free speech. Julie Seaman recently retired from the tenured faculty at Emory Law School, where she taught courses and seminars on evidence, constitutional law, and freedom of speech from 2001 to 2022 and served as associate dean of academic affairs from 2017 to 2020. Professor Seaman takes an interdisciplinary approach to legal scholarship, considering the implications of brain science, social science, and cognitive psychology to various legal questions. Her most recent work focuses on fndings in the feld of cyberpsychology as they relate to social media speech and the First Amendment. She is also a longtime board member and former board President of the Georgia Innocence Project, a non-proft organization that works to free wrongfully convicted individuals using DNA evidence. Weiying Shi is a PhD student at the Department of Media and Communication, City University of Hong Kong. Her research interests include political communication, public opinion and new media. Kristin Skare Orgeret,  Dr. Art is Professor at the Department of Journalism and Media Studies at Oslo Metropolitan University (OsloMet), Norway where she co- heads the research group MEKK and organizes annual international conferences on the safety of journalists. She heads the Norwegian Research Council funded project ‘Decoding Digital Media in African regions of Confict’ (DD-MAC) with partners from the Netherlands, Ethiopia, Mali, and with Norwegian SIMULA (2021–2025). Orgeret has been working with journalism, lecturing, and research in several African and Asian countries, and has published extensively within the feld of journalism, media and freedom of expression. John Steel is Research Professor in Journalism in the School of Humanities and Journalism at the University of Derby. His research interests span the intersection of democracy, free speech, media and participation with a current focus on public understanding of and engagement with journalism norms, ethics and regulation. Claire Taylor is a principal lecturer in Human Resource Management at Nottingham Trent University. Claire completed her doctorate in 2018 which focused on employment relations, social media surveillance, sousveillance, misbehaviour, identity, employee voice and aesthetic labour. She has published in New technology, Work and Employment and is currently developing a research monograph for Routledge Studies in Management, Organisation and Society (USA) based on her doctoral thesis. Lada Trifonova Price  is a Senior Lecturer in Journalism at the Department of Journalism Studies, University of Sheffeld, UK. Her current research focuses on challenges to media freedom and journalistic practice in Eastern and Southern European democracies as well as examining physical and psychological threats to safety of journalists. She has published several papers on journalism practice in fragile democracies, examining a range of threats to press freedom, censorship and self-censorship, ethical challenges, and media corruption. She xv

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is the editor of the Routledge Companion to Journalism Ethics published in 2021 and is currently editing a special journal issue on trauma literacy in global journalism education and practice for the Journalism, Media & Communication Educator due in the spring of 2023. Paul Whickman is Senior Lecturer in English at the University of Derby where he is also the Programme Leader for the MA in English. His research interests lie in the eighteenth and nineteenth centuries and, most particularly, the Romantic-period poets Byron, Shelley, Keats and Wordsworth. He has published articles in journals such as The Keats-Shelley Review and has also served as an academic advisor for Gale/Cengage on both Lord Byron and Percy Shelley. Paul’s monograph Blasphemy and Politics in Romantic Literature: Creativity in the Literature of Percy Bysshe Shelley was published by Palgrave in 2020. Paul has also published on censorship and free speech more broadly and recently contributed a chapter to Charlotte Lydia Riley (ed). The Free Speech Wars: How did we get here and why does it matter? (Manchester University Press, 2021). Ryusaku Yamada is Professor of political theory at Faculty of International Liberal Arts, Soka University, Japan, since 2014. Ryusaku obtained a PhD in politics from the University of Sheffeld in 2002. His felds of expertise include democratic theory, mass society theory, citizenship studies, and feminist political theory. He currently engages himself in reconsidering political and social thought of Karl Mannheim in England in the 1930s and 1940s. His major works written in English are Democracy and Mass Society: A Japanese Debate (Tokyo: Gakujutsu Shuppankai, 2006); ‘“Mass society” and “civil society” in postwar Japan’, in Globality, democracy and civil society, ed. by T. Carver and J. Bartelson (Abingdon: Routledge, 2011); and ‘Mannheim, mass society and democratic theory’, in The Anthem Companion to Karl Mannheim, ed. by D. Kettler and V. Meja (London: Anthem Press, 2018). Ryusaku was also involved in translation projects of English books into Japanese, including Chantal Mouffe’s The Return of the Political, David Held’s Democracy and the Global Order, Michael Kenny’s The Politics of Identity and Carole Pateman’s The Disorder of Women. Yuan Zeng is a lecturer at the School of Media and Communication, University of Leeds. Her research interests focus on the interplay between media and politics, mainly in the areas of journalism studies and political communication. She is currently working on the role of social media in China’s political communication. She is the author of Reporting China on the Rise: Habitus and Prisms of China Correspondents (Routledge, 2019).

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INTRODUCTION Censorship and freedom of expression in turbulent times John Steel and Julian Petley

We write this introduction in turbulent times. A war raging in Europe and rising tensions between superpowers on the international stage; a global energy crisis, in part fuelled by Russia’s aggression in Ukraine and its apparent animosity towards western powers; the ongoing economic and social impacts of the Covid pandemic; and the political and economic fall-out from the United Kingdom’s (UK’s) exit from the European Union. All taking place within a context in which the environmental impacts of human activity are leading us towards a catastrophic tipping point for life on the planet. Within such tumult we observe some familiar trends, most notably the rise of both populist and corporate entities seeking to take advantage of deepening social cleavages to advance their agendas. Extremist ideologies, particularly from the right, are in the ascendancy, with freedoms and rights being eroded even in purportedly liberal societies such as the UK. A particularly notable feature of this authoritarian turn in many western democracies is the manner in which right-wing forces of one kind or another have increasingly mobilised the issue of freedom of expression for their own ideological ends. At the risk of oversimplifcation, one could argue that, in the past, those on the conservative right were mainly in favour of censorship and those on the liberal left were largely opposed to it. And the kinds of battles which were waged in Britain and the United States (US) in the 1960s and 1970s over the rise of so-called “permissiveness” would seem to bear out such a proposition. However, only up to a point, as, during this period, sections of the feminist movement, which one would generally associate with left-liberal values, began to campaign against certain types of images of women in the mainstream media. As noted in Eric Barendt’s two chapters in this volume, a particular target of their wrath was pornography, both soft- and hard-core, which, they argued, by stereotyping and demeaning women actually encouraged men to regard them in a negative light and indeed to be violent towards them. In their view, then, women’s freedom to live their lives unthreatened and unmolested trumped the media’s right to freedom of expression in this area. And in the twenty-frst century, others of a left-liberal persuasion have increasingly taken a similar line on representations – and not only pictorial ones – of people of colour. Calls from those who argued that certain forms of expression encouraged and promoted misogyny and racism, and thus should be restricted, were soon met with loud resistance from the right – particularly, but by no means exclusively, the authoritarians and populists gathered DOI: 10.4324/9780429262067-1

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under the alt-right banner – who have insistently characterised such demands as exemplifying “cancel culture” and a “free speech crisis” while caricaturing those who make them as “snowfakes”. In many western democracies, and most certainly in the UK and US, this ushered in the current era of “culture wars”, although as Valerie Scatamburlo-D’Annibale makes abundantly clear in her chapter in this volume, these have lengthy antecedents, particularly in the US, in the war by the right on “political correctness” (This is discussed in a UK context by Petley [2006, 2019] and Malik [2020: 57–94]). And as John Steel makes clear in his chapter on the so-called “war on woke” in the UK, what very clearly underlies the demands made by these particular culture warriors of the right for greater protection for freedom of expression is actually, in true Orwellian fashion, an insistence that the expression of views with which they disagree should be discouraged and preferably silenced. After years of agitation by the Free Speech Union and the uber-culture warriors of the decidedly right-wing think tank Policy Exchange, aided by an endless stream of lurid stories in the right-wing press about right-wing speakers at universities being allegedly “cancelled”, the government introduced in May 2021 the exceedingly inaptly named Freedom of Speech (Higher Education) Act which was passed unto law in May 2023 This creates, inter alia:

• A statutory tort that will enable students, academics and visiting speakers to seek legal

redress and fnancial compensation for any loss they claim to have suffered as a result of being “cancelled” or “no-platformed”. • A new duty for universities to promote lawful freedom of speech and academic freedom in higher education in order to be registered as higher education providers and to be able to access public funding. • A similar duty for student unions, which will be required to register with the Offce for Students (OfS), the higher education regulator in England, which will have powers to fne them if they fail to comply with the Bill’s free speech provisions. • A new role within the OfS of a Director for Freedom of Speech and Academic Freedom, with a remit to champion freedom of speech and academic freedom on campus, and responsibility for investigations of alleged infringements of freedom of speech duties in higher education. The numerous critics of the Act, which include Index on Censorship, English PEN, Article 19 and the University and College Union (UCU), have claimed that it is based on greatly exaggerated numbers of alleged incidents of “cancelling” (a judgement that is amply borne out by the Report of the Joint Committee on Human Rights [2018]), that freedom of expression in universities is already well protected under the Education Act 1983 and that the Bill, paradoxically, will in all likelihood exert a distinct “chilling effect” on teaching and research in universities. This is because these institutions are highly liable to discourage their staff and students from doing anything which might threaten their funding or invite the unwelcome attentions of the Orwellian-sounding Director for Freedom of Speech and Academic Freedom. In other words – to encourage them to engage in self-censorship. And bearing in mind the antecedents of this measure and the motives of its proponents, it is not exactly diffcult to imagine what kinds of expression are most likely to be targeted by those invoking its powers. As the barrister and author David Renton (2021) has put it: Given the context in which it has emerged, the bill is clearly intended to protect rightwing campaigns, giving them a right to threaten universities in two ways at once. They 2

Introduction

will use the bill as a shield, demanding that their own speech is protected. They will use it as a sword, complaining that any radical speech is an attack on them. Thus, an all too likely scenario is that if a university celebrates International Women’s Day, a certain kind of men’s rights organisation will insist that the university platforms people who condemn feminists as “feminazis”. Or that a history course which contains material critical of the slave trade will have to be “balanced” by one that stresses its benefts. This might at frst sight seem rather a parochial matter, but in fact it raises in acute form many of the issues which are central to this volume. The proponents of the Bill act as if everyone has the inalienable right to visit a university and deliver a speech or lecture, as long as they remain within the (pretty fexible) limits of the law. But this is absolute nonsense, as anyone attempting to claim this “right” will very soon discover. Furthermore, as the contributions to this volume make abundantly clear, there is no such thing as an absolute and inalienable right to freedom of expression. Proponents of “free speech fundamentalism” such as Elon Musk frequently quote the First Amendment of the United States Constitution, which lays down that, among other things: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press”. However, this does not extend to, for example, obscenity, child abuse material, speech that incites illegal conduct (particularly violence), perjury, false advertising and defamation that causes harm to reputation. Nor does the European Convention on Human Rights (ECHR), which came into force in 1953, guarantee absolute freedom of expression. Article 10 may indeed state that “everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”, but it also adds: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confdence, or for maintaining the authority and impartiality of the judiciary. Furthermore, not only is this right by no means absolute but it can be balanced by other rights, such as Article 8, which concerns the right to respect for private and family life. This is one of the main reasons why those sections of the British press which specialise in privacybusting stories loathe the ECHR and demand that the UK depart from it. The fact that the Human Rights Act 1998, which incorporates the Convention into UK law, provides, for the frst time, a degree of statutory protection for freedom of expression, clearly matters to them not a jot. Indeed, these papers have constantly agitated for the Act’s abolition. A related argument frequently advanced by the free speech fundamentalists is that curbing freedom of expression, even harmful forms of expression, marks the start of a “slippery slope”. Liberal critics are issued with dire warnings that if they succeed in censoring the expression of views that they don’t like, then their own views could well be subject to such treatment next. Thus we slip from regulation to tyranny. This is also related to the well-worn “where do you draw the line?” argument, which seems to assume that because some lines are diffcult to draw at law (as indeed they are), then no lines can be safely drawn at all, which 3

John Steel and Julian Petley

is absurd and nihilistic, as such lines are constantly being drawn by legislators and the courts without the arrival of the Inquisition. As Nesrine Malik has put it in a key contribution to the debate on freedom of expression in these deeply troubled times: Lines are drawn from to limit drinking, sexual activity and voting by age, abortion by foetal growth stage, prison sentences by severity of crime. The entire existence of a functioning society is predicated on the business of drawing lines and distinctions between things where there are only shades of difference, often in extremely complicated and emotive areas. But somehow, according to the freedom of speech crisis logic, our ability to do so will collapse when trying to draw a line between the KKK and Black Lives Matter (2020: 127) Since the attempt by the right to capture the notion of freedom expression and to use it for their own ends is by no means confned to the UK and US (vide Hungary, Poland, Australia and Brazil, for example), and as this threatens to cloud and confuse its importance to democratic polities wherever they may be, this issue is worth exploring a little further in the Introduction, even though it is discussed at greater length in various contributions to this volume. As Malik has pointed out, the right-wing has forged its strategy on the myth of a free speech crisis, whose purpose is to normalise hate speech or shut down legitimate responses to it … [It] is not to secure freedom of speech, that is, the right to express one’s opinions without censorship, restraint or legal penalty. The purpose is to secure the licence to speak with impunity; not freedom of expression, but rather freedom from the consequences of that expression. (2020: 98) But what has in fact happened, largely because of the growth of the online world but also because of Fox News in the US and Australia and new channels such as GB News and TalkTV in the UK, is a veritable explosion of the kind of speech that many fnd bigoted and intolerant, and against which they have increasingly pushed back. And because the forces of the right have enjoyed an unimpeded ride online and on channels which share their views (as well as, in the UK, in papers such as the Mail, Sun, Telegraph and Express), they have come to expect, as of right, the ability to express those views unimpeded wheresoever they wish, and to do so without being subjected to any kind of negative reaction. Reasonable objection and protest are now stigmatised and caricatured as “silencing” or “cancelling” and thus an assault on the principle of freedom of expression (or rather, free speech absolutism). As Malik claims, with particular reference to Nigel Farage, the former leader of the UK Independence Party (UKIP): “This is an era when there has never been more airtime given to extremist views, while constantly having to listen to the purveyors of those fringe views complain about their lack of platform” (ibid.: 114). These are the people described by Mari Uyehara as “free speech grifters”, who are “not actually interested in the free exchange of ideas, per se; they are interested in liberal caricature for clicks, social media followings, and monetisation” (quoted in ibid.: 118), goading liberals into kicking back against them and thus enabling the grifters to represent this as censoriousness and themselves as martyrs of a liberal inquisition. 4

Introduction

As far as possible putting such culture war histrionics and distractions to one side, the chapters in this volume provide a series of prisms – historical, philosophical, political, cultural, theoretical – through which current controversies relating to censorship and freedom of expression may productively be viewed. Freedom of expression is one of the foundational human freedoms and this volume offers an extensive exploration of this complex notion in the hope that we can reconsider, re-evaluate and refocus on its signifcance and value in these tempestuous and troubling times. This book therefore aims to be a guide for the perplexed in this extremely complex and rapidly changing area, consisting of comprehensive, authoritative and original scholarship on the various historical, philosophical, political and cultural parameters of freedom of expression and its constraints across a wide range of divergent disciplinary areas, time frames, technologies and geographical contexts. To aid navigation through this terrain, the book is organised around four themes. Many of the chapters in this volume either speak to how existing concepts and ideas that underpin freedom of expression are not fully realised or illustrate that contradictions and impediments within existing systems and structures are in dire need of reconsideration and rethinking. Whether this be in relation to the formal mechanisms and procedures which shape the scope of freedom of expression, the normative formulations underpinning it or the complexities of networked communication, there is a clear imperative to rethink and reimagine the conception of freedom of expression more fully in line with new confgurations of democracy. Part I of the book examines important conceptual parameters of freedom of expression, taking a broad historical tour through the development of freedom of expression as an emergent idea and censorship as a set of practices. Though freedom of expression is often considered a consequence of Enlightenment thinking, Jordi Pujol’s chapter emphasises some of the key pre-Enlightenment contributions, principally from the European Renaissance of the 1500s. From this we move on to more familiar terrain, with Geoff Kemp’s formulation of the Enlightenment’s contribution to the development of freedom of expression and Russell Blackford’s detailed historical analysis of tolerance and intolerance as an important consideration in relation to the concept of freedom of expression, particularly with regard to religious expression. Paul Whickman continues the focus on constraints of expression in his exploration of legal precedent and literary infuence during the eighteenth and early nineteenth centuries. From here we centre on important foundational elements of freedom of speech and expression by examining John Stuart Mill and what Kristoffer Ahlström-Vij suggests is his “aspirational ideal of a discursive society”. He suggests that, though foundational and important, Mill’s justifcation for freedom of expression may be some way off his and others’ ideal and that a more general defence of freedom of expression may be best obtained elsewhere given Mill’s particular conception of public discussion. Mill is also picked up by other contributors to the volume, thereby emphasising his continuing importance in this domain. Of course, linked to Mill’s argument for freedom of thought and expression is the notion of individual liberty, and Eric Barendt’s frst contribution in this volume explores the complex and philosophically multifaceted relationship between free speech arguments and the conception of individual autonomy. Here he takes us through the various ways in which the notion of autonomy has been connected to freedom of expression, suggesting ultimately that this alone is insuffcient as a single foundational argument for freedom of expression and is less persuasive than the democracy argument which is explored in a number of chapters in the volume. 5

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Of course, related to the democracy argument for freedom of expression and one of the important currents running through the history of journalism and arguments for freedom of the press stems from Bentham’s notion of “security against misrule”, and Jesse HearnsBranaman emphasises Bentham’s distinctive utilitarian justifcation for freedom of expression and the press, which he suggests retains some of its contemporary resonance. Sue Curry Jansen provides a thoughtful and wide-ranging account of freedom of expression across the twentieth century. A century which, as she suggests, we can learn much from, not least in the sense that freedom of expression is fragile, requiring both constant protection and critical refection on its power. This includes its power to silence as well as its power to liberate. This is a theme that is also picked up in a number of other chapters in the volume, as we will see. Curry Jansen’s suggestion to be mindful of freedom of expression’s fragility is followed by Eric Barendt’s second contribution to this volume, which examines the philosophies of censorship and control. Though the various philosophies of freedom of expression are well-established, the same cannot be said for theories of censorship, and Barendt’s chapter allows us to signal a number of key themes running through its history. The chapter begins by exploring the censorious implications of some of Plato’s thinking before highlighting censorship in medieval and Renaissance Europe and later in the England of the eighteenth and nineteenth centuries. Barendt again highlights Mill’s contribution to freedom of expression but this time with a focus on one of his key critics – James Fitzjames Steven – elements of which are traced through into the twentieth century. Though the dynamics and instruments of censorship may have changed from earlier periods, Barendt suggests we would do well to refect the key philosophical underpinnings of censorship while refecting on contemporary issues such as disinformation, misinformation and “fake news”. Part II of the book moves on to examine the range of different political, cultural and, of course, geographical considerations concerning freedom of expression and its regulation. Here we begin with a thought-provoking chapter by Ezequeil Korin and Jairo LugoOcando which emphasises the fact that though freedom of expression has historically been suppressed in parts of Latin America, opportunities to develop a distinctive and, importantly, a collective right of freedom of expression have emerged from these turbulent times. They signal that despite this development, the collective realisation of freedom of expression faces real pressures and constraints in the contemporary era, primarily via the structural impediments brought about by corporate norms and values. From this perspective we can see freedom of expression constrained by narrow individualism rather than working for the good of the community. The Covid-19 pandemic cast a large shadow over the development of this volume and the contribution from Bruce Mutsvairo and Kristin Skare Orgeret highlights how the pandemic also provided new opportunities for censorship and control in Africa, with Nigeria and Tanzania offered in evidence as case studies. Moving on to northern Africa and specifcally the Arab region, Noah Mellor focusses on how measures or indices of freedom of expression do not adequately capture the range of factors and cultural elements which contribute to a distinctive conception of freedom of expression in the region. Mellor signals how journalists’ and audiences’ understandings of public interest and “public morals” have contributed to the development of the conception of media freedom in the region, but stresses that the standards of media freedom, developed in the Global North, do not take such factors into account, which in her view is a mistake. She goes on to argue that the legacy of colonialism looms large via these indices and legitimises “the hegemony of western judicial processes, instead of adopting a more inclusive and multicultural approach”. Again, as with Korin and 6

Introduction

Lugo-Ocando’s chapter, we see traditional liberal notions of freedom of expression rooted in western thinking constraining “bottom-up” experiments which might offer something new and innovative in this context. China is of course a signifcant country with regard to signalling the range of constraints on freedom of expression that states can develop, and the volume contains two chapters which detail the workings of state control and the suppression of freedom of expression in China. The frst, by “Chris” Fei Shen and Weiying Shi, offers a comprehensive account of the provisions restricting freedom of expression in China, particularly on the internet. The chapter details not only the bureaucratic and technological parameters of censorship but also the cultural disposition towards online censorship practices. This is a topic also explored in the chapter by Yuan Zeng and Tongzhou Ran. As various other chapters in Part II of this volume point out, distinctive regional and cultural forces confront and are entangled within essentially western liberal conceptions of freedom of expression in different ways. Japanese culture and society are no different, as Ryusaku Yamada points out in his contribution to the volume. Yamada traces recent trends towards liberalisation in relation to freedom of expression as coming under increasing pressure from conservative forces within Japanese politics and society. He also notes that despite freedom of the press and academic and artistic freedoms being constitutionally protected, just as elsewhere these freedoms are increasingly coming under pressure from conservative and reactionary shifts within Japanese culture and politics. Imen Neffati provides an insightful account of the principle of laïcité1 in the French Republican tradition, highlighting how “conceptions of free speech are contextual, always shifting according to who is the perpetrator and who is the victim”. Focussing on the fallout from the Charlie Hebdo controversy, Neffati signals how laws designed to combat hate speech, despite being orientated towards principles of tolerance and laïcité, implicitly and unfairly target Muslims in France. The themes of religious toleration and its complexities are also followed up by Adam Possamai, who highlights the return of religion to the public sphere within the context of the advance of neoliberalism in Australia. Here he discusses how certain faith-based groups perversely exploit anti-discrimination laws by expressing a protected right to “discriminate” against certain minority groups. He argues that this not only has implications that limit the freedom of expression of minorities but also has economic and social impacts which are detrimental to minorities and socially disadvantaged groups. Part III picks up on some of the cultural and contested themes from Part II and analyses key controversies which provide useful focal points through which to explore and examine freedom of expression and its current state of health. The section begins with a discussion of hate speech, and here Raphael Cohen-Almagor refects on it in relation to Holocaust denial, which he argues should be treated as a form of hate speech and, as such, restricted. Some have argued that the same should apply to pornography, or at least certain forms of it, but in his chapter on pornography, obscenity and indecency Julian Petley examines the diffculties in legislating against such forms of representation, using examples stretching from written material in the mid-nineteenth century to online forms in the present day. Discussion of the ideological parameters of silencing is continued, from a different perspective, in Valerie Scatamburlo-D’Annibale’s chapter, as she examines the notions of “political correctness” and “cancel culture” and their roots in the US. This is also picked up by John Steel’s contribution which addresses the issue of “cancel culture” in the UK and maintains that the anxiety around this stems largely from conservative and reactionary responses to 7

John Steel and Julian Petley

social and cultural change. One of the main arenas in which some claim that “cancel culture” is rife is in universities. However, Thomas Docherty argues that the real threats to academic freedom, including freedom of expression, are market logics and “proprietary interests”. Such “privatisation of knowledge” actively places limits on academic freedom by delegitimising academics and the scope of their educational and wider civic obligations. Simon Dawes’s chapter examines the current crises of legitimacy and argues that within the contemporary neoliberal era, the concept of media freedom is no longer ft for purpose and may indeed be counter-productive in its current neoliberal individualist formulation. He suggests we need to “rethink” the notion of media freedom in order to address the deepening crisis of legitimacy and the respond to the challenges brought about by the neoliberal context. Julie Seaman examines online speech, and gossip in particular, via social media, and in relation to informal mechanisms of control which can impact on freedom of expression through the enforcing of social norms. Drawing on the work of Elinor Ostrom, she examines group dynamics and the workings of group norm enforcement, particularly within networks where visibility and anonymity are optional. Governance of social norms and accepted behaviours is also the focus of Claire Taylor’s chapter in which she focusses on the workplace and how employers make use of social media to monitor and screen current and prospective employees. However, Taylor also signals how this power of the gaze can be inverted via sousveillance, in instances where a redressing of the power imbalance is being sought by employees. Remaining within the online domain, but this time analysing how the use of cyberattacks and “secrecy hacking” can disrupt and silence civil society actors and those deemed “undesirable”, Emma Briant explores how these practices can undermine and damage social cohesion and provide fertile ground for conspiracy theories. Briant suggests that greater levels of government transparency and accountability, coupled with higher standards in journalism, are required to combat these nefarious cyber-enabled infuence operations. Lada Trifonova Price’s chapter draws our attention to the dangers journalists face in the course of their everyday lives and the threats posed to media freedom because of the violence and intimidation that journalists around the world increasingly face. These are clearly forms of censorship and control and exert a particularly extreme form of chilling effect on the media. Though there are an increasing number of mechanisms with which to address this problem, these need to be put into practice far more effectively than is currently the case in too many countries of the world. Part IV of the volume examines the range of legal, institutional and technological frameworks within which freedom of expression is constrained. Julian Petley’s second chapter focusses on censorship and freedom of expression in the online world. Countries such as China, as two of the chapters in this collection show, have amply demonstrated that the internet is very far from a censor-proof zone, but this chapter focusses primarily on the processes whereby the internet is censored and otherwise regulated in democratic societies. This is most commonly carried out via intermediaries, mainly internet service providers, in a process of co-regulation, but the major problem with this is that it results in privatised forms of censorship, mainly fltering, blocking and surveillance, which are largely invisible, publicly unaccountable and have little regard for human rights considerations. Helen Fenwick focusses on freedom of expression in the European Court of Human Rights in Strasbourg and examines how the human rights provisions, particularly in relation to political speech are broadly supportive of journalism in its attempts to scrutinise the state 8

Introduction

and policy. However, the chapter also points out how “extremist” political speech may not be afforded the same protections given extremists’ contempt for the principles of democracy. She goes on to note that “unquestioned support for established journalism […] will require revision” given that political speech online, for example in the form of citizen journalism, has highlighted numerous contradictions and tensions. Dimitrios Kagiaros’s chapter also focusses on the European Court of Human Rights, this time focussing on the scope of whistle-blower protections which seek to balance out freedom of expression of the whistle-blower with other qualified rights. He emphasises the importance of critically engaging with the normative foundations of ECHR case law as a way of assessing the outcomes of judgements. Overt censorship is often undertaken by nation states in the name of the national security and Paul Lashmar’s chapter examines the history and development of the use of “national security” as a pretext for silencing journalists and whistle-blowers in the UK. A theme running through much of this collection is that insufficiently regulated commercial forces can lead to a form of what has been aptly called market censorship. This is in complete contradistinction to the still fashionable idea in certain quarters that “deregulating” media markets will automatically lead to greater freedom of expression in those markets – the so-called “marketplace of ideas”. Britain’s highly concentrated national press market, and its much remarked-upon ideological homogeneity and debased journalistic standards, decisively give the lie to this chimera, and the remaining chapters in this volume all touch on this phenomenon of market censorship in one way or another. Jonathan Hardy’s chapter analyses advertising and commercial speech and how marketing communications are increasingly merging with non-advertising content “in ways that intensify but also reframe discussions on advertiser influence”. In this context, the chapter addresses how marketeers have sought to extend particular protections for commercial speech, sometimes in controversial and contradictory ways. Hardy suggests that in order to address the “distorting effects of advertiser market control”, more needs to be done in terms of the regulation of commercial speech. The focus on regulation is also a feature of Tom O’Malley’s chapter which provides a wide historical sweep of press regulation in the UK. Again, drawing on the contemporary resonances of Mill’s ideas on freedom of expression, like a number of other chapters in the volume, O’Malley suggests we need to rethink the concept of regulation, particularly in relation to the press, in order to meet new challenges within the information sphere. Aaron Ackerley also takes up the challenge of attempting to confront and reconfigure existing conceptions of freedom of expression in relation to the press. He argues, like others in the volume, that we need to break with the “zombie” ideas which are orientated around negative conceptions of liberty in the Millian sense. Instead, he argues, we should think in terms of promoting more positive freedoms which provide the public with access to a wide range of trustworthy and accessible information sources which may yield a more democratic and publicly accountable media environment. The final two chapters in the volume continue the focus on journalism, with Chrysi Dagoula examining journalists’ use of X* and how the boundaries of journalistic identity are negotiated. She discusses journalists’ self-censorship and the blurred boundaries between the personal and professional worlds while highlighting both opportunities and risks, particularly in relation to the job security of journalists. The final chapter in our volume addresses a key feature of journalism, but one that is often ignored in relation to questions of press freedom – namely news values. Here Tony Harcup details the ways in which news production is often a process of negotiation between the journalist and the news organisation and dependent on * Formerly known as “Twitter’’.

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the levels of autonomy that journalists have. Press freedom in this sense is something that is often negotiated between the imperatives of the news organisation and journalists’ adherence to the virtues of public interest journalism. There is little outright censorship within the context of a newsroom, though there are clear rules which help guide practice and ensure that, in principle at least, news organisations don’t break the law. Instead, there exists a constant negotiation between values and imperatives. Harcup goes on to highlight the tensions between the commercial and civic obligations that journalists face in bringing news to the public, hinting ultimately that publics too have some responsibility in acknowledging the role that news values play in the production process.

Acknowledgements The genesis of this book was in 2018, some way from its eventual publication date. Inevitably the Covid-19 pandemic had a signifcant impact on the development of the volume, not least because, due to diffcult working conditions, not a few of the potential contributors that we approached turned us down regretfully, and some of those that did agree to deliver failed to do so. Of course, such things happen normally in the course of putting together an edited volume, but not, at least in our experience, to the extent that they did in this case. However, this resulted in our continually revising and refning the contents of the volume and searching out new authors and, in our view, this actually improved upon our original conception. However, we acknowledge that there are some gaps in the volume where we were unable to secure contributions from authors in these areas. For example, we would have liked to have more contributions from the Global South which offer more distinctive and rooted perspectives on freedom of expression, and also from countries such as Russia, Hungary and Poland, where freedom of expression is notably under threat. Much to their credit, all of the authors included in this volume have gone over and above in terms of their contribution and we thank them for their hard work and continued commitment to the project through some very diffcult times. We’d also like to thank the publisher Routledge for bearing with us through this project, with Hannah McKeating and her staff playing an important role in getting the project into print.

Note 1 The principle of secularism in France where the state assumes a neutral position in relation to religion.

References Joint Committee on Human Rights. (2018) Freedom of Speech in Universities. London: House of Commons, House of Lords. Malik, N. (2020) We Need New Stories: Challenging the Toxic Myths Behind Our Age of Discontent. London: Weidenfeld & Nicholson. Petley, J. (2006) “The retreat of reason.” Index on Censorship, 4, 8–14. Petley, J. (2019) “‘Not funny but sick’: Urban myths.” In J. Curran, I. Gaber and J. Petley, Culture Wars: The Media and the British Left. Abingdon: Routledge (pp. 58–80). Renton, D. (2021) “The ‘free speech’ law will make university debate harder, not easier.” Guardian, 22 May, Retrieved from https://www.theguardian.com/commentisfree/2021/may/22/the-free -speech-law-will-make-university-debate-harder-not-easier.

10

PART I

Concepts and histories

1 FREEDOM OF EXPRESSION AS A PRE-ENLIGHTENMENT CONCEPT Jordi Pujol

From the printing press to the early newspapers1 While freedom of expression is formally recognised as an Enlightenment concept codifed after the revolutions of France and America, the seeds of free speech can be traced to particular pre-Enlightenment thinkers as well as to a historical period in which certain political shifts and a platform of innovative technology paved the way. In Europe, the arrival of Johann Gutenberg’s printing press in 1450 allowed for the mass dissemination of texts, and thus an effective tool for the spread of ideas was born. The reach of ideas had previously been in the hands of the copyists who manually reproduced texts. Europe was not singular nor the frst to print texts – in China and Japan a technique of woodcutting (xylography) was used since the eighth century, the Koreans had a mobile character type that closely resembled Gutenberg’s2 from the fourteenth century and the Court of Peking had the bulletin Jing Bao, which became issued daily by the 1800s3 – yet what distinguished Europe was not the invention of the printing press, but the rapid development of the phenomenon of printing. Starting in 1466, many printers sprang up in various German cities, and later in Paris and Venice as well. In 1500, the continent had 250 printing presses and a wide circulation of texts.4 Hand-written newsletters (frst called novella and later known as the avvisi) were in circulation as early as the fourteenth century. They were made for the elites of the time, that is, for princes and merchants.5 Throughout the 1500s, the still hand-written avvisi became increasingly commodifed and sold for proft. From the ffteenth and sixteenth centuries, news sheets, literary pamphlets and books (political and religious) were plentiful; all of them were non-periodical publications, which were sold in bookstores or by street vendors in the cities.6 All these forms of “leafets thus demonstrated, from their origin, the three main functions of journalism: they provided current information, reported minor events of human interest, and expressed opinions”.7 Some media historians give little consideration to these early newspapers due to their simplicity and the fact that they were highly localised, but as Nerone emphasises: “the history of news media becomes interesting at the point where governments lose their control over the uses of news, making it possible for unoffcial actors to change the way states behave”.8 The volume of texts, messages and information increased with printers DOI: 10.4324/9780429262067-3

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and found another catalyst in distribution, which was frst linked to commercial transport (land, sea and river), and then to the postal service. Renaissance Europe was characterised by the spread of printing and by its postal network, which was accessible to the public and as a result, it became a crucial agent of change.9 The papal archives chronicle the services of the cursore pontifcio (papal messenger) and the courier from the beginning of the fourteenth century.10 The frst postal services established by the European monarchies (the Imperial post) included: France (1464), England (1478) and the Holy Roman Empire (1502), where Franz von Taxis11 serving as postmaster, set up postal stations between Brussels and other European capitals (Paris, Toledo, Innsbruck, Rome, Naples, etc.).12 The feature of periodicity helped to build the new medium of newspapers.13 The proximity and development of the postal system and the book printing businesses provided the conditions to create newspaper printing and circulation. Other scholars think that the diplomatic channels of embassies constituted the original news network for these early newspapers.14 In 1605 the bi-monthly periodical Nieuwe Tijdinghen (The News of Amberes) arose, as well as the newspaper Relation in Strasbourg.15 During the following years the fourishing of weekly gazettes continued and spread to the major European cities. The frst daily newspapers appeared in Leipzig in 1660, but they did not become widespread in Europe until the eighteenth century, and a bit later in the United States.16 Thus, starting with Gutenberg’s printing press, but mostly with the spread of newspapers in Europe, news became a tool of competition among the powerful under specifc circumstances: that’s where the history gets interesting. In Renaissance Europe, partly at least because of the separation between the religious authority of the Roman Church and the emerging power of secular rulers, elites challenged each other across a range of issues. (Nerone, 2005: 14–15) In fact, recent scholarship is challenging the traditional view that the notions of the public sphere and of public opinion began in the Enlightenment era,17 as it explores the overall role of public communication in the city-states of the Italian Renaissance.18 Technological development explains an important part of the phenomenon, which must be placed in a specifc historical, political and religious context. “Printed news prompted states and churches to intensify their effort to control the fow of information” (Nerone, 2005: 17). Each of them was equipped with different systems of content control and censorship. As Nerone highlights, “historically, every state has reacted to new communications technologies, from printing to the most recent digital technologies, with some form of regulation” (Nerone, 2005: 15–16).

The Old Regime and the role of papal pronouncements on printing After terrible plagues and wars, and the fall of Constantinople (the last bastion of the Eastern Roman Empire), late ffteenth-century Europe entered a period of immense social and cultural optimism. There were strong developments in trade and banking, and great commercial, political, scientifc and evangelical projects were undertaken, such as the discovery of the New World in 1492. Humanism arose with a desire for a secular education that was more concerned with the possibilities of the human being than with theology. Europe found itself at a time of great cultural and artistic effervescence. On the political level, at the end of the 14

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ffteenth century and into the sixteenth, monarchs were further centralising their powers, increasing bureaucracy to manage their expanding empires. This is the context in which Machiavelli (1469–1527) formulated his political philosophy.19 The political system of the Old Regime was based on the throne–altar alliance, a stratifed view of society and economic interventionalism. The Catholic Church, and later the various Protestant denominations, were bound to the political authority by close relationships of power. At some periods, it was diffcult to distinguish between the interests of the absolute monarchies and those of the churches. The relationship of the Church with political power was delineated by the famous words of Jesus: “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s” (Matt 22:21). This dual structure, constituted by the separate authority of the state and the sacred authority was a novelty with respect to the theocracies of ancient history, and it remains so in the Muslim world today. This separation of the two spheres is the deepest guarantee of the various human freedoms that are recognised in the western world, and which modernity developed as rights. These two societies [are] related to each other but not identical with each other, neither of which had this character of totality. The state is no longer itself the bearer of a religious authority that reaches into the ultimate depths of conscience, but for its moral basis refers beyond itself to another community. This community in its turn, the Church, understands itself as a fnal moral authority which however depends on voluntary adherence and is entitled only to spiritual but not civil penalties. (Ratzinger, 1988: 161) The “voluntary adherence” and the role of “moral authority” are the two key principles for understanding the role of the Church’s legitimacy when it comes to censoring content. Most of the literature on the question focuses on the execution of these principles, which were sometimes mishandled and abused by Church offcials, but the legitimacy of the Church’s role here must be acknowledged. In Renaissance Europe, Christianity enjoyed a dominant position as doctrine and as an institution. It was a powerful agent of cultural development, promoting various forms of communication: painting, sculpture, architecture, music, literature, theatre and more. That is why the frst impressions of incunabula (printed books) were made in abbeys, bishoprics and universities of the Church. Now, the printing press was in the service of the Church and monarchs, as well as people with less honourable interests. All of these found the printing press to be an excellent ally for advancing their ideas. With the increase in translations of the Bible into vernacular languages and their spread due to the printing press, bishops grew concerned about the integrity of these unoffcial translations. In many cases, they were done by people with no experience, or those who were not authorised by the ecclesiastical hierarchy. Hence, the frst declarations of the authority of the Church on the freedom of the press were related to that issue. Since books were reproduced by hand until the invention of the printing press, censorship had been a responsive intervention, meaning that it took place after the act of writing. With the advent of the printing press and the production of not only hard copies but multiple copies (of newspapers, books, speeches and lectures), censorship was exercised preemptively. The frst rules on prior censorship date back to the ffteenth century, and were also applied to theatre and later to flm. Censorship meant “the action of the public authority by which the expression of certain ideas and opinions in various media of social communication is controlled, limited, or suppressed” (Del Pozo, 1984: 494), which 15

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is justifed with public or moral reasons and ordered toward the common good of society. This power was exercised by the King, who in turn professed a religious confession, as either a Catholic king or a Protestant king: cuius regio eius religio (whose realm, his religion). According to this legal principle, subjects were to adopt the religious beliefs and authority of the monarch. Censorship was exercised by the state through an agency, and, in issues related to morality, the civic power delegated the criteria to the Church, enforcing whatever she decided. As an example: “In 1521 Charles V issued an edict punishing the publication of books prohibited by the Church, which examined potentially heretical or immoral works through the Congregation of the Holy Offce” (Del Pozo, 1984: 494). As a matter of fact, censorship existed in the Protestant kingdoms as well as the Catholic ones. This power was not disputed by subjects until the arrival of liberalism, which brought a greater awareness of individual rights and freedoms. The Pope’s frst offcial conformity with censorship was in 1479 with the document Accepimus litteras vestras (March 17, 1479), whereby Sixtus IV praises, supports and grants the use of ecclesiastical censorship20 for unorthodox books.21 This document of the Pope is the frst norm of ecclesiastical censorship established within the Church; in this case, it was directed toward printers, merchants and readers. Within a few years, the frst pronouncement for the entire Church would arrive with the Bull Inter multiplices (November 11, 1487). With it, Pope Innocent VIII arranged for the ecclesiastical censorship of books for all Christianity, entrusting the bishops with the execution of this task of control. All texts were examined before going to print, and the approval of the ecclesiastical authority was required in order to print them (certifcate of Imprimatur), otherwise penalties of varying intensities were incurred. The institution of the Index as an organised mode of censorship was completed at the Council of Trent.22 As one can infer, the origin of the confict between censorship and freedom of expression is due to the result of a historical period in which religious and political power were in many ways undifferentiated. The key players of power and culture in this period were empires and ecclesiastical actors. It was a matter of time for each one to rediscover the original separation between politics and the sacred. Meanwhile, some important philosophical and legal changes regarding the notion of freedom were about to take place: the subjectivity shift with Ockham that determined the enlightened notion of political freedoms, and the universalisation of rights to all men and to all nations by Vitoria, grounding rights on the equal human condition.

An important shift that determined the future notion of individual freedom in modernity23 A key player, whose philosophical position laid groundwork for the advancement of the person’s right to freely hold and express ideas, was William of Ockham (1285–1347). Best known for his metaphysical nominalism and rejection of universals,24 he recognised only the existence of observable elements and eliminated any concept that went beyond the particular. By rejecting universals, he virtually rejected any attempt to ground nature in a metaphysical order, and he imposed the need for a physical basis of explaining the individual.25 This constituted a complete shift away from the classical conception of Aristotle, Plato, Seneca and Cicero, who upheld individual freedom associated with a telos. Aristotle thought that there was a “common view of the good” of all members of the polis. Being a good person was, for him, very closely linked to being a good citizen. For Aristotle, virtues had a place within the social context of the city-state.26 In contrast, Ockham is known for his will-based ethics, in 16

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which subjective intentions (not actions) are the most important thing, and where freedom is an undetermined choice of personal preferences.27 Ockham’s thought inspired Luther’s notion of freedom as “choice” in De servo arbitrio (1525), and further modern developments on autonomous freedom that led – in many cases – to individualism28 and voluntarism. Ockham also replaced the classical legal thought and its realistic notion of right (as the right thing that is due) with the notion of subjective right, whereby something gains the status of a right because it is attributed to a subject. Under this justifcation, the rights become a formal faculty (instead of what it is due). Hervada explains that even though Ockham does not formally use the terms “natural right” and “positive right”, the frst appears as a moral precept – not as right in the strict sense – and only the second is truly a right.29 For him, right is defned as a potestas or facultas (power or faculty) and is exclusively bound to the mandate of the legislator, since the individual is the only real grounding principle, rather than a relationship with any telos or metaphysical notion. Ockham’s factual and empirical approach would give rise to a system of formal rights that, by virtue of being declared, are owed to them. In this sense, we have gone from an understanding of justice as “human cooperation” (something intrinsic to the reality of human life), to understanding justice as mere “impartiality” or as an “ethic of rules”.30 The law, then, is no longer the “just” solution, but rather a set of rules determined by the state to institute social order.31 The identifcation of justice with the protection of subjective rights was not the original concept of the law, however, and, on this point, Hannah Arendt agrees. She argues that the law, as a catalogue of particular prescriptions, is only three centuries old: The law of the city-state was neither the content of political action (the idea that political activity is primarily legislating, though Roman in origin, is essentially modern and found its greatest expression in Kant’s political philosophy) nor was it a catalogue of prohibitions, resting, as all modern laws still do, upon the Thou Shalt Nots of the Decalogue. (Arendt, 1998: 63) A climax occurred in the seventeenth century with the work of Hobbes. Founder of the social contract theory and of the modern idea of the state, he formulated the modern individualist philosophy of law, based on nominalist principles of the fourteenth century. Ultimately, modern law rejected an Aristotelian system and, from the sixteenth to the eighteenth centuries, the classical notions of justice (particular, distributive, commutative) were blurred until they almost disappeared from the study of law.

Francisco de Vitoria’s framework of equal rights for all peoples and nations The concept of freedom in the public sphere originated and developed throughout the history of ideas, in which Ockham’s approach forms one of its frst roots. Another Dominican friar – this one from Spain – Francisco de Vitoria, developed a doctrine at the beginning of the sixteenth century that laid the foundations of human rights and international law, building a bridge between the Old Medieval Regime and secular Modernity. Vitoria based international law on the law of nations (ius Gentium).32 The legal and philosophical foundations that accompany his approach link very well with what would later become the conversations about universal human rights in an international community, in which all nations with equality of rights participate. Francisco de Vitoria (1492–1546) used the geographical 17

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discoveries of the New World as an opportunity to develop a political and legal doctrine based on the anthropology of Thomas Aquinas, according to which all human beings are free and equal by nature. This equality extends to all nations, including indigenous populations. His postulates were very novel because they broke with the Aristotelian theory of natural slavery and because they criticised the medieval theocratic theory. Vitoria, inspired by Christian universalism,33 defended a radical equality between nations, without distinguishing between Christian and non-Christian nations. The new international landscape that was created with the geographic discoveries of the era imposed a new legal order which, until then, had been strongly based on canon law and theology. The head of Salamanca abandoned the identifcation between political and divine power which upheld the sovereignty of kings by divine right. Vitoria advocated popular sovereignty limited by the natural order, that is, people’s free participation, their ability to give consent and natural law.34 The common good imposed respect for the natural rights of human beings who were subject to a political community. Vitoria proposed a new concept of national sovereignty limited by a common good of humanity (universal human goods that are prior to national interests). All nations of the globe, without distinction of race, culture, or religion, are connected to each other by the fact that they are part of a universal community. (…) All nations have equal dignity, equal rights and duties. The universal common good includes national rights and implies obligations of justice and solidarity to contribute to the same common good. (Fazio, 1998: 74) Vitoria’s approach combines individual rights and duties with the rights and obligations of nations, as a great human family that is organised politically.35 Within this theoretical – philosophical-juridical – framework of human rights and obligations, freedom of expression emerges as a good to be protected by human political society, along with other goods such as information, one’s conscience and the freedom to profess any religion. The right to freedom of expression protects the human good of public, free and rational discussion, which is critical for personal development and public deliberation in a democracy. The declarations of rights at the end of the eighteenth century are a milestone in the journey begun by Vitoria. His theory was not echoed in an era in which the birth of nation-states was privileged. Modern international law did not use his concept of international law (between nations), but academics have begun to appreciate his intuitions as they explore global legal solutions to conficts of individual rights. The model of law for the people that Vitoria proposes – unlike the model centred around national borders – fts very well in the current international context with increasingly global problems: fnancial, bio-tech and ecological crises, pandemics and mass movements of migrants and refugees, as well as those which specifcally affect freedom of expression: manipulation of information, theft of personal data, the distribution of falsehoods and hate speech online, etc. These crises require solutions that go beyond the territorial confnes of nations. There is a burgeoning interest in research on global law,36 understood as a common law of humanity that transcends the law of individual states and international law between nations. This framework is inspired by the legal tradition inherited from the Roman ius gentium and the Medieval ius commune, with elements of international Law, from the ius universal and the international law forged in the Enlightenment.37 It is a transition from an international society of nations to a global community, which makes it a priority to place the person, and 18

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not only the sovereignty of the state, at the centre of the system.38 This requires nation-states to renounce specifc aspects of their sovereignty through international treaties.39 Habermas defnes it thus: “A world dominated by nation-states is indeed in transition toward the postnational constellation of a global society”.40 Understanding that the origins of the notion of freedom of expression and its protection are rooted in an inherited tradition41 is essential for having a productive public conversation about rights and international law in the future.

Notes 1 2 3 4 5 6 7 8 9 10

11 12 13 14 15 16 17 18

19

20

21

For valuable suggestions and advice, I am grateful to Juraj Kittler. See Briggs and Burke (2005:13) See. Albert, Sánchez Aranda and Guasch (1990: 14). Ibid, 13–14. For a deeper understanding of the argument see Infelise (2002). See. Albert, Sánchez Aranda and Guasch (1990: 15). Ibid, 16, our translation. Nerone (2005: 13). See Behringer (2006: 340). “From the end of the thirteenth century the documents tell us about cursors and couriers, the latter organized according to commercial criteria, and made use of by the curia”. See Fedele and Gallenga (1988: 4). The expenses annotated in the books of the Curia use the Latin term cursor that stands for two different functions: cursore pontifcio and corriere (merchants’ courier). Fedele says that there is no clarity on this. The term “taxis” derives from this family’s surname, which was linked to the Habsburg emperors from 1490 onward. See Behringer (1990). See Behringer (2006: 343–344). In 1550, serial-numbered newspapers that reported on a regular basis appeared in some cities in Europe. These periodical news reports were located in places with large post offces. See Behringer (2006: 349–350). The opinion held by a group of European communication history scholars was published recently in a joint work: See Raymond and Moxham, (2016). This view has been challenged by other scholars like Christ (2005: 35–66) and Kittler (2018: 199–222). See Behringer (2006: 354). See Albert, Sánchez Aranda and Guasch (1990: 28-33). Historians such as Landi (2006); De Vivo (2007); Rospocher (2012); Salzberg (2014). “It was Belgian historian Henry Pirenne (1915) who, half a century before Habermas, already claimed that the roots of modern Western democracy—such as elementary forms of self-government, rational public debate, and argumentation—need to be searched for among the nascent urban communities of the High Middle Ages (ca. 1000–1300 CE). (…) At the peak of the medieval period, the political culture of European urban communes already required that the most important legislative initiatives and electoral acts be approved by popular acclamation, which essentially established public opinion as a normative ideal by turning it into a source of political legitimation” (Kittler, 2016: 111). In his work The Prince (1513), Niccolò Machiavelli suggests that the main goal of this is the conservation of power, for which he manipulates human tendencies and passions. His political philosophy – unlike that of the classical tradition – is based on pragmatism and is independent of any ethical or moral reference. That is to say, the ecclesiastical authorisation to publish books relating to faith and Catholic doctrine. We must keep in mind that religious and political power had not yet been separated in the Christian kingdoms, which were all still Catholic at that time, as the Peace of Westphalia was still nearly two centuries away. “We have received your letters (...) We have learned with what zeal of the Orthodox faith and with what prudence they have forbidden the reading, printing, and sale of books infected with heresy, and have repressed the ignorance of women. As long as this prevails, they judge what they do not know and believe themselves competent in the Scriptures, they fall into the greatest errors and

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22

23 24

25

26 27

28 29 30 31 32

33 34 35 36 37 38 39 40 41

become the ruin not only of their own souls, but also the souls of others”. And Sixtus IV continues: “The art of the press, just as it is considered quite useful because it makes the multiplication of precious and useful books possible, so it would become quite harmful if those who have it in their hands were to misuse it, gradually printing what is prejudicial”. Pius IV, Accepimus litteras vestras, brief, March 17, 1479, in Cebollada (2005: 5ff), 5ff our translation. What Sixtus IV calls “the art of the press” corresponded to the trade of printing and distribution. Pius IV, De indice librorum, decree, December 4, 1536, in Cebollada (2005: 5ff), which Pius IV put into effect through the Bull Dominici gregis on March 24, 1564, with the list of books that were banned for the Catholic faithful. On June 14, 1966 the Holy Offce would eliminate the institution of the Index. An early explanation of this topic can be found in Pujol, 2023: 201ss). Ockham criticises the realism (philosophical and theological) that postulates harmony between the universal and the particular. He argues that there is only the individual and rejects the possibility of the abstraction of a common nature of things. There are only individual things that are different in each one. “Cualquier realidad singular es en sí misma singular (…) por lo cual si algo es singular, lo es por sí mismo”; y añade que no debe buscarse “una causa de la individuación (…) sino más bien de cómo es posible que algo sea común y universal”. William of Ockham, I Sententia, dist 2, q. 6, in Opera Theologica II: Scriptum in Librum Primum Sententiarum, S. Brown and G. Gal (Eds.), (St. Bonaventure University, New York, 1970), 196ff. See Juan José Sanguineti, “Individuo y naturaleza en Guillermo de Ockham”, Scripta Theologica I7(1985/3) 845–861; Olga Larre, Guillermo de Ockham, in F. Fernández Labastida and J.A. Mercado, (eds.), Philosophica: Enciclopedia flosófca on line, URL: http://www.philosophica.info/ archivo/2013/voces/ockham/Ockham.html. See MacIntyre (1981: 127). Freedom is undetermined because there is no telos. Before and after a choice, the will is undetermined and indifferent. Personal preference is the only cause of the action taken. See: Ockham, IV Sententia, q. 16, in Opera Theologica VII: Quaestiones in Librum Quartum Sententiarum (Wood and Gal), 1984: 359); Ockham (1979: 574ff); Ockham (1980: 87). The historian Richard John stresses the importance of not confounding individualism with individuality (John, 2019: 31). See Hervada (2000: 240–241). This argument is discussed by several contemporary philosophers, who oppose each other. See Rawls (1973). See Villey et al. (2020: 94). The Roman Ius Gentium was a universal common law, founded in the unity of rational human nature: quod naturalis ratio inter homines constituit. The novelty of Vitoria is that he changes one word (quod naturalis ratio inter gentes constituit) and proposes an international law inter gentes, between independent human groups but with the unity given by human nature. That is to say, an international law that is both public and private. See Truyol Serra (1946: 51). It is based on the stoic notion of the unity of the human race and the Roman Ius Gentium. Thomas Aquinas emphasised that the unity of the human race does not only exist at a metaphysical level, but also on a philosophical, juridical and political level. See Fazio, (1998: 66). See Vitoria (1967: 667–675). Cf. Reginaldo Pizzorni, “Lo ius gentium nel pensiero di del Vitoria”. In I diritti dell’uomo e la pace nel pensiero di Francisco De Vitoria e Bartolomé de las Casas (Milan: Massimo, 1988), 575. See Domingo (2020); Capaldo (2016); Walker (2015); Dybowski and García Pérez (2018); Kingsbury et al. (2019); Teitel (2011); González (2016); Twining (2000); Madunic and Kirton (2009); Rabkin (2005); Archibugi (2008). See Domingo, The New Global Law, 4. Jean Monnet, a founding father of Europe, said in a speech in Washington (April 30, 1952): “We are not forming coalitions of states, we are uniting people”. (Original: Nous ne coalisons pas des États, nous unissons des hommes.) Jean Monnet, Mémoires (Paris: Fayard, 1976), vol. 9, 617. See Domingo (2020) chapter 5. Habermas, “Does the Constitutionalization of International Law Still Have a Chance”, in Cronin (2006). This is one of the core ideas developed in Pujol (2023).

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References Albert, P., Sánchez Aranda, J. J. and Guasch J. M. (1990) Historia de la prensa (Madrid: Rialp). Archibugi, D. (2008) The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (Princeton: Princeton University Press). Arendt, H. (1998) The Human Condition (Chicago: The University of Chicago Press). Behringer, W. (1990) Thurn und Taxis: Die Geschichte ihrer Post und ihrer Unternehmen (Munchen: R. Piper). Behringer, W. (2006) “Communications Revolutions: A Historiographical Concept.” German History, 24(3): 333–374. Briggs, A. and Burke, P. (2005) Social History of the Media: From Gutenberg to the Internet (CambridgeOxford: Polity Press). Christ, G. (2005) “A Newsletter in 1419? Antonio Morosini’s Chronicle in the Light of Commercial Correspondence Between Venice and Alexandria.” Mediterranean Historical Review, 20(1): 35–66. Del Pozo, M. (1984) “Censura.” In Santos Velasco Villar and others (eds.), Gran Enciclopedia Rialp, vol. 5, pp. 494–498 (Madrid: Rialp [our translation]). de Vitoria, F. (1967) Relectio de Indis (Madrid: Corpus Hispanorum de Pace, CSIC). de Vivo, F. (2007) Information and Communication in Venice: Rethinking Early Modern Politics (Oxford: Oxford University Press). Domingo, R. (2020) “The New Global Law.” In R. Domingo and J. Witte Jr (eds.), Christianity and Global Law, pp. 98–120 (New York: Routledge). Dybowski, M. and García Pérez, R. (eds.) (2018) Globalization of Law: The Role of Human Dignity (Cizur Menor: Thomson, Reuters Aranzadi). Fazio, M. (1998) Due rivoluzionari: Francisco de Vitoria e Jean-Jacques Rousseau (Rome: Armando Editore [our translation]). Fedele C. and Gallenga, M. (1988) Per servizio di nostro Signore: Strade, corrieri e poste dei papi dal medioevo al 1870 (Modena: Enrico Mucchi Editore). González, A. M. (ed.) (2016) Contemporary Perspectives on Natural Law: Natural Law as a Limiting Concept (London and New York: Routledge). Habermas, J. (2006) “Does the Constitutionalization of International Law Still Have a Chance.” In C. Cronin (ed.), The Divided West (Cambridge: Polity). Hervada, J. (2000) Lecciones propedéuticas de flosofía del Derecho (Pamplona: Eunsa). Infelise, M. (2002) Prima dei giornali: Alle origini della pubblica informazione (secoli XVI e XVII) Bari: Laterza. John, R. R. (2019) “Freedom of Expression in the Digital Age: A Historian’s Perspective.” Church, Communication and Culture, 4(1): 25–38. Kingsbury B., Malone, D. B., Mertenskötter, P., Stewart, R. B., Streinz, T. and Sunami, A (eds.) (2019) Megaregulation Contested: Global Economic Ordering After TPP (Oxford and New York: Oxford University Press). Kittler, J. (2016) “The Normative Role of Public Opinion in the Republican Experience of Renaissance Venice.” Communication and the Public, 1(1): 25–38. Kittler, J. (2018) “Caught between Business, War, and Politics: Late Medieval Roots of the Early Modern European News Networks.” Mediterranean Historical Review, 33(2): 199–222. Landi, S. (2006) Naissance de l’opinion publique dans l’Italie moderne [The Birth of Public Opinion in Modern Italy] (Rennes, France: Presses Universitaires de Rennes). MacIntyre, A. (1981) After Virtue (Notre Dame, IN: University of Notre Dame Press). Madunic, J. and Kirton, J. J. (eds.) (2005) Global Law (New York, London: Routledge). Monnet, J. (1976) Memoires, vol. 9 (Paris: Fayard). Nerone, J. (2005) The Media and Public Life: A History (Oxford: Whiley). Ockham, W. (1970) “I Sententia, dist 2, q. 6.” In S. Brown and G. Gal (eds.), Opera Theologica II: Scriptum in Librum Primum Sententiarum (New York: St. Bonaventure University). Ockham, W. (1979) “I Sent., d. 38 q. 1.” In G. Etzkorn and F. Kelley (eds.), Opera Theologica IV: Scriptum in Librum Primum Sententiarum (New York: St. Bonaventure University). Ockham, W. (1980) “Quodlibeta I, q. 16.” In J. Wey (ed.) Opera Theologica IX: Quodlibeta Septem (New York: St. Bonaventure).

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Jordi Pujol Pius IV, Accepimus litteras vestras, brief, March 17, 1479. In P. Cebollada (2005) Del Génesis a Internet: Documentos del Magisterio sobre las comunicaciones sociales (Madrid: BAC) 5ff (author translation). Pizzorni, R. (1988) “Lo ius gentium nel pensiero di del Vitoria.” In I diritti dell’uomo e la pace nel pensiero di Francisco De Vitoria e Bartolomé de las Casas (Milan: Massimo). Pujol, J. (2023) The Collapse of Freedom of Expression: Rebuilding the Ancient Roots of Modern Liberty (Notre Dame IN: University of Notre Dame Press). Rabkin, J. A. (2005) Law Without Nations? Why Constitutional Government Requires Sovereign States (Princeton: Princeton University Press). Ratzinger, J. (1988) Church, Ecumenism and Politics (New York: Crossroad). Rawls, J. (1973) A Theory of Justice (Oxford: Oxford University Press). Raymond, J. and Moxham, N. (eds.) (2016) News Networks in Early Modern Europe (Leiden: Brill). Rospocher, M. (ed.) (2012) Beyond the Public Sphere: Opinions, Publics, Spaces in Early Modern Europe (Bologna, Italy: Il Mulino). Rti Teitel, R. (2011) Humanity’s Law (Oxford, New York: Oxford University Press). Salzberg, R. (2014) Ephemeral city: Cheap print and urban culture in Renaissance Venice (Manchester: Manchester University Press). Sanguineti, J. J. (1985) “Individuo y naturaleza en Guillermo de Ockham.” Scripta Theologica, 17(3): 845–861. Truyol Serra, A. (1946) Los principios del Derecho Público en Francisco de Vitoria (Madrid: Cultura Hispanica). Twining, W. (2000) Globalization and Legal Theory (Cambridge, New York: Cambridge University Press). Villey, M. (2020) Filosopia del derecho (Madrid: Rustica). Walker, N. (2015) Intimations of Global Law (Cambridge, New York: Cambridge University Press). Ziccardi Capaldo, G. (2016) The Pillars of Global Law (2nd ed.) (London, New York: Routledge).

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2 FREEDOM OF EXPRESSION, THE ENLIGHTENMENT AND THE LIBERAL TRADITION Geoff Kemp Freedom of expression as an article of faith in modern democracy is bound frmly to the Enlightenment and the liberal tradition, both defned not infrequently in terms of the advocacy and defence of a liberty to think and communicate without censorship. R.G. Collingwood wrote in the 1930s that the “outward characteristic of all liberalism is the fact that it permits the free expression of opinion”, drawing on “memories of a long liberal tradition” as this “conception of political life has been gradually worked out in Europe and America during the last three centuries” (1989: 177–8). To stand in the liberal tradition, as modern liberal democracy does, is to value freedom of expression and vice versa, and being a tradition implies an accompanying history or genealogy of coming to value free expression, ideationally and institutionally. This history has been given temporal location as an Enlightenment legacy, with roots traced to a “long Enlightenment” stretched temporally, transnationally and partly tautologically to embrace relevant ideas and events from the seventeenth into the nineteenth century across Britain, North America and continental Europe. Enlightenment liberalism’s tradition of freedom of expression has been characterised, and perhaps caricatured, as a narrative of progress in theory and practice during which expression became free of control by state or church, backed by a claim of right, allowing a process of enlightenment in pursuit of truth or knowledge, serving individuals in their opinions and interests and empowering the people and democracy, particularly with the expansion of media (Curran, 2002). Pre-publication censorship and excessive post-publication punishments were successively resisted, preventing governments from shielding themselves from criticism or intervening unjustifably to shield others. The long-run story typically fnds opening scenes in John Milton’s Areopagitica (1644) and in his compatriot John Locke’s account of natural rights in the Two Treatises of Government (1690) shortly before prepublication censorship was abolished in England in 1695. It then moves to Cato’s Letters in the 1720s and, with national variation, proceeds through the eighteenth century’s further battles against restriction in Britain, the European Enlightenment and American Revolution, the latter yielding the US First Amendment, before John Stuart Mill’s On Liberty (1859) provides a canonical capstone ahead of the further embedding of freedom of expression or free speech at the centre of modern democracy’s self-image, notably by twentieth-century First Amendment jurisprudence in the American case. DOI: 10.4324/9780429262067-4

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The present chapter retreads steps in the same basic story, conscious of the critical complexity bypassed by any brief account. In an age troubled by hate speech, disinformation and media excess, the progress paradigm could be expected to seem too simplistic and optimistic for ready acceptance. It will not pass unnoticed that the summary version involves a succession of Englishmen named John (Peters, 2005: 64). Academic efforts to bring historical scholarship to bear on a developmental paradigm in free expression proceed with contextual caution to avoid lapsing into triumphal “Whig history” (Ingram, Peacey and Barber, 2020). Yet elsewhere in western society and its politics, the traditional narrative of free expression continues to see regular service, drawn on and quoted towards a redemptive end, as an achievement to stand by. To the extent free expression is endorsed by all legitimate political positions, all in liberal democracy are effectively “conscripts” of the liberal tradition (Bell, 2014: 689). Equally, scholarly disagreement about the path to the principle, or the idea of a pathway, does not vitiate agreement on the principle’s basic worth. A writer with more at stake than most has remarked, “In a free society the argument over the grand narratives never ceased. It was the argument itself that mattered. The argument was freedom” (Rushdie, 2012: 360).

Liberal tradition as historical narrative The preceding quotation, as it happens, both does and doesn’t rely on history to vindicate free expression, and it remains a matter of debate what role the past plays in justifying principles we live by, the relation between genesis and validity (Jay, 2022). Political theorists recently addressing “freedom of speech in the liberal tradition” needed no resort to history as such, their liberal tradition being a “heritage of critical refection” in which refection not heritage justifes (Waldron, 1993: 202).1 Any shared inheritance exerts a hold, nonetheless, and that of free expression arises partly from a conviction that it emerged from a refning process of argument and trial over time. As one of the most famous passages in the American free-speech tradition puts the matter, “It is an experiment, as all life is an experiment” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Holmes, 2010: 277). A conviction that history vindicates freedom of expression is reinforced by the accompanying narrative of its historical trajectory. The liberal tradition in freedom of expression, considered historically, is undeniably a narrative, which is not to deny its reality or import. Whig history was not the invention of a wilful historian but itself the product of history and a largely “inescapable inheritance”, wrote Herbert Butterfeld (1944: 2). One way to glimpse the inheritance from the outside, nevertheless, may be to consider it not only as a developing set of ideas about freedom of expression but as a more or less conscious effort to build an identifable tradition, partly in recognition that tradition can be its own argument. A tradition identifed as “liberal” is apt for such consideration given that “liberalism” was a term uncoined before the nineteenth century, meaning earlier fgures are themselves liberal conscripts. It will be suggested that the explicit notion of a liberal tradition in free expression is not much older than the period in which Collingwood wrote, a transnational adaptation of what had been considered frstly a British tradition. The following genealogy of certain milestone moments therefore pays attention to the building of tradition as a theme running parallel to other arguments or claims advanced for free expression, those found in numerous iterations of the story of a free press and free speech (e.g., Siebert, 1952; Levy, 1985; Keane, 1991, 1–50; Copeland, 2006). The tradition 24

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has its own story, as it were, alongside the narrative of emergent arguments, which as usually traced roughly ft a threefold scheme: an argument from conscience, an argument from truth and an argument from democracy (cf. Schauer, 1982; Martin, 2001; Steel, 2012: 9; Leveson, 2012: 56). Typically, the frst relates most to claims about religious duties, natural rights and self-expression (or self-fulflment, but not hinging on consequences); the second centres on the necessity of a “contest of ideas” to yield truth or its closest approximation; the third centres on the notion of having a watchdog on government and giving each citizen and public opinion(s) a voice, though support for “democracy” as such arrived late in the period examined here. One further consideration that can only be touched on, like traditionbuilding evident historically but until recently little discussed, is past debate on calumny, contumely and injuria (Waldron, 2012: 204–233; Shuger, 2015). The harms of hate speech have brought further rereading of the inherited tradition in our historical moment.

Milton and English beginnings If the typical opening scene of the liberal story is Milton’s Areopagitica, the scene is set by the 2012 Leveson Inquiry into the British press, where a media owner arrived carrying a copy of Areopagitica and Justice Leveson’s fnal report offered a “brief history of press freedom” as “essential background” (The Guardian, Apr 23, 2012; Leveson, 2012: 58).2 It begins: From the advent of the printing press in 1476 until the end of the seventeenth century, state licensing meant that the Government and the Church could control the press, and in particular prevent the printing of seditious or heretical works. State control over printing tightened when, in 1538, Henry VIII decreed that all new printed books had to be approved by the Privy Council and registered with the Stationers’ Company. The licensing regime ended with the abolition of the Star Chamber in 1640. However, in 1643 licensing was reintroduced by Cromwell’s Parliament in an effort to suppress the publication of material about Charles I. This act moved John Milton to write his now immortal defence of the free press in The Areopagitica, a Speech for the Liberty of Unlicensed Printing. (Leveson, 2012: 58) The report then delivers Areopagitica’s most-quoted declaration: “Give me the liberty to know and to utter and to argue freely according to conscience, above all liberties” (Leveson, 2012: 58; Milton, 1959: 560). The passage is on the one hand a succinct overview undergirding “the commitment of modern democratic society to freedom of the press”; on the other, history made Manichean in service of the present, with errors of fact and concision suggestive of deeper distorting effects in making history serviceable (Leveson, 2012: 58). The challenge, observes one historian, is to avoid “imposing our own, anachronistic presuppositions”, but anachronism is perhaps integral to tracing a tradition (Como, 2020: 98). Areopagitica is justly famous but demonstrably by the measure of a period later than its own, being largely ignored when published and for some decades afterwards, a reason Milton’s place is the start not the middle of a liberal tradition: his contemporaries were not of the same mind. Yet Milton was concerned to be seen to stand within existing tradition, being at “paines to be so much Historical” in page after page neglected then and in Areopagitica’s afterlife. The tradition, or rather traditions, invoked were an admixture of republican resort to ancient Greece and Rome, 25

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Protestant appeal to the early and reformed church and a patriot perspective on England and English as land and language of liberty. He identifed this inheritance with an absence of systematic control but readiness to act against threats to religion and the polity, opposing pre-publication censorship while countenancing post-publication punishment. Against this inheritance Roman Catholicism was depicted as innovating anti-tradition, “drawn as lineally as any pedigree”, with the Popes of Rome the inventors of press licensing, which “crept out of the Inquisition” to be imitated by England’s popish episcopate and lead parliament astray, (493, 505). Religious speech in the “Judaeo-Christian tradition” advanced free speech, as recently noted, though it did so through the tradition’s internal antagonisms (Bird, 2023). Areopagitica traced tradition for present purposes, casting literary distinction on essentially partial and partisan history. Milton’s history was meant to persuade but he appreciated the issue that gives the liberal tradition an air of paradox, the tradition-justifcation mismatch: “But some will say, What though the inventors were bad, the thing for all that may be good?” (507). From this resulted the quotably timeless Areopagitica found in the liberal tradition as, on an infuential view, “the classic argument for free speech” (Sabine, 1973: 470). The description is defcient because quotation from Milton’s ringing oratory is not strictly an argument, and because Areopagitica has no single argument but offers an array of claims born of policy not only intellectual aims, typical of advocacy of freedom of expression. Nevertheless, three of the most famous Areopagitica passages serve to illustrate the major strands of argument in the threefold scheme of conscience, truth and democracy, as well as suggesting the limitations of schematising: frst, the “conscience” quotation above; second, “Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter”; and third, in the epigraph from Euripides, “This is true Liberty when free born men / Having to advise the public may speak free” (Milton, 1959: 484, 560–1). The liberal tradition has been drawn to all three, for varying reasons, sometimes not indisputably Milton’s reasoning. Areopagitica’s opening address, freely advising “the public”, can on a modern reading evoke liberalism’s core tenet of securing space around individuals “to have the freedom to express themselves, to be counted as part of the body politic” (Freeden, 2015, 40). But in Areopagitica the “public” formally addressed was Parliament, even if being in print implied another, and Milton’s priority was not the formation of authoritative public opinion “out of doors” through a free press, a political cause in more recent times associated with the Levellers’ delivery of “Agreements of the People”. Areopagitica spoke less to protodemocratic politics than to the more fundamental matter, to Milton and most contemporaries, of religion. This underwrote the famous declaration on conscience, later reinterpreted as a secularised individual right, its form in Leveson’s report, a right of conscience that being inherent need not be tied down by consequences (or religion). Milton was not unaware of rights talk, a few months later laying claim to, “licence by the right of nature, and that liberty wherin I was born, to defend my self publicly against a printed Calumny” (Milton, 1959: 580). In Areopagitica, he referred to freedom to address Parliament as an English birthright but made no general “rights” claim. The “conscience” quotation was declarative but not developed in his text. More developed in Areopagitica was his equally famous argument from truth: liberty of the press was essential to the “scanning of error to the confrmation of truth”, a contest of ideas. The contest might be in religious or civil matters, but here too Milton’s driving impulse was “reforming the Reformation”, tolerance in the cause of Protestant truth rather than diversity itself or taking public opinion as substitute – fnding and confrming truth, not generating it. From this stemmed Milton’s exclusions, notably 26

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Roman Catholics and royalist cavaliers standing in the way of truth. While opposing prepublication censorship, he allowed that “mischievous” printed works might face “the fre and the executioner”. Milton enjoined a “liberall and frequent” hearing for dissenting voices, but he would be part of a liberal tradition, so named, only by later conscription (567).

Locke and the “end of censorship” Before then Milton was recruited within the blended tradition he followed and forged in Areopagitica, that of free expression as English and Protestant. In the crisis around attempts to exclude a Roman Catholic successor to the throne by those newly named “Whigs”, press control was again identifed with “popery” and tyranny in tracts that borrowed freely from Areopagitica: Charles Blount’s A Just Vindication of Learning (1679) and Charles Denton’s An Apology for Liberty of the Press (1681). This was not yet overtly in the tradition of Milton – Blount mentioned him in passing – but the shared preoccupation was his genealogy of censorship as “an old Relique of Popery” imposed on England by enemies within (Kemp, 2009: 206). To this were added other plagiarised or paraphrased passages from Areopagitica, notably those relating to the pursuit of truth and learning, while Blount augmented Milton’s classicism with a Tacitean echo in urging “the same freedom to write, as to speak” (211). Blount went further by stating explicitly that a free press exposed to public judgement “whoever opposes the Publick Interest”, a key idea in the liberal tradition, although this is picking out liberal plums: on the same page, he declared that a censorial Catholic ruler in Protestant England would be as “disagreeable, as to behold a black Indian head, annex’d unto a white Body” (Kemp, 2009: 204). The free speech tradition is measured in practical milestones, not only principles. In 1695 statutory pre-publication censorship ended in England through principally practical objections, including that post-publication laws such as seditious libel would suffce. In eighteenth-century memory-making the milestone was absorbed into England’s “Glorious Revolution”, the 1689 replacement of Catholic James II with Protestant William and Mary, as were the Toleration Act, commercial advance symbolised by the creation of the Bank of England and regular elections and party government: it became a “Revolution Principle”. In Jürgen Habermas’s infuential account, England at the turn of the eighteenth century was the place and period that saw the emergence of the “liberal model” of the public sphere, destined to spread to America and Europe over the next century and a half, crucially tied to rising “bourgeois” interests, not least trading in political disputation (Habermas, 1989: xviii, 57–9). Debate on politics and morals became routinised in an expanding periodical press, even party writers claiming to be non-partisan in judgement and open to the better argument, forging a notion of informed public opinion as an active presence in society, based on approbation or acquiescence towards the practice and principle of liberty of the press, construed frstly as the absence of prior restraint. The “end of censorship” in 1695 was a practical and partly accidental milestone but a tradition centred on evolving principle is drawn to fnding a spokesman for the liberalising shift, a role tending to fall to John Locke as the foremost forerunner of liberalism, as well as English (Kemp, 2012). Another major early Enlightenment thinker, Baruch Spinoza, had been published in English translation in 1689 arguing, after Tacitus, for the freedom of a man to “think what he will, and speak what he thinks”, but this Portuguese-Jewish denizen of the Dutch Republic remained outside the Anglophone tradition, though neither does he feature in Habermas’s wider European perspective (Spinoza, 1689: 435). Locke’s inclu27

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sion has nonetheless been a questionable ft, and intermittent, because he did not address freedom of expression at all directly in the major works published in 1689–90, requiring interpretive extrapolation. Since the eighteenth century the Two Treatises of Government has been claimed to imply the inclusion of freedom of expression among the natural rights recoverable under government, and Locke’s case in Letter Concerning Toleration taken to extend from belief to free expression. However, Locke’s published texts are elusive on the subject and cautious about the scope of natural-law duties: Religious worship is a matter for one’s maker not magistrate, but not so opinions tending to disturb government and society, including calumny and hatred (Kemp, 2019: 174; Waldron, 2012: ch. 8). Argument from natural right is prized in a libertarian liberal tradition but locating a suitably direct quotation on free speech tends to involve treating a quotable work like Cato’s Letters as “Lockean” (e.g., Kelley and Donway, 1990: 70). The Locke text seldom quoted is the one he wrote directly against censorship, a manuscript critique of press licensing directed to its abandonment by Parliament in 1695. This opened with an echo of Blount’s Tacitean echo – “I know not why a man should not have liberty to print whatever he would speake, and to be answerable for the one just as he is for the other” – but mainly comprised detailed criticisms of the legislation and the book trade monopolies it fostered at the expense of readers and writers. It did not invoke an earlier tradition unless we count Tacitus and complaint at the price of “Clasick authors”, nor did it “offer sonorous Miltonic appeals for liberty of expression”, as Goldie notes, though unlike Areopagitica it might lay claim to having some immediate effect (Locke, 2019: 322; Kemp, 2019: 173). Locke’s major philosophical work, An Essay Concerning Human Understanding (1690) is also marginal in the liberal narrative, though along with Areopagitica’s genealogy of licensing it was a source for Locke’s admirer Matthew Tindal, who in 1698 was among Locke’s earliest reinterpreters and possibly the earliest writer to expressly place free expression among “the natural Rights of Mankind”, albeit mainly on the premise that words do much good and no harm. From Locke’s Essay Tindal’s pamphlet took a reference to the “law of reputation” in human motivation, which Locke also called a “law of opinion”, Tindal envisaging it working through a free press to constrain behaviour by “the rich and powerful”, in effect the “watchdog” argument of later liberal tradition (Goldie and Kemp, 2009: 34, 46; cf. Habermas, 1989: 91). Not least, he saw this forestalling press restraint, which history showed arose in “Protestant Countries too”, though contrary to “those noble and generous Notions our Ancestors had of Liberty” (49–50). The religious ties of freedom of expression were beginning to loosen, while the perceived bond to an English lineage tightened after 1689 and 1695.

British tradition-building in the century of the Enlightenment The famous declamation on free speech in Cato’s Letters, the “essays on liberty” penned by John Trenchard and Thomas Gordon in the early 1720s, illustrates what Locke did not write: “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech, which is the Right of every Man, as far as by it, he does not hurt and control the Right of another”. What followed was as much appeal to history as a rights argument. Gordon, who wrote the Cato essays defending free expression, cleaved closer to Milton than to Locke in drawing on classical example, in this case Rome under the Republic and wiser emperors, as the blessed times of free speech attested by Tacitus, who was here quoted directly. Cato diverged from both Milton and 28

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Locke in the emphasis laid on the due “publick Censure” of public authority, reducing religion to asides about freedom to call the monarch a papist. Although a Whig contractual note emerged in seeing government as “Trustees of the People”, the model of debate and censure was ancient Rome, with England a successor thanks to the revolution and Whig ascendancy. Rome “with the loss of its liberty, lost also its freedom of speech” but, God be thanked, we Englishmen have neither lost our Liberties, nor are in Danger of losing them. Let us always cherish this matchless Blessing, almost peculiar to our selves: that our Posterity may, many Ages hence, ascribe their Freedom to our Zeal. (Goldie and Kemp, 2009: 321–5) The liberal tradition was frstly British tradition-building, with transnational potential through the exported image of a “nation of liberty” (or “liberty and property”). The primacy of England (or Britain, from 1707) in possessing toleration by statute and liberty of the press by statutory default saw the country identifed at home and abroad as having gained a character and conventions to protect or emulate. Voltaire in France was foremost among reform-minded continental observers who lauded the condition of the country, thereby critiquing their own. The developing concerns of Enlightenment philosophes in the European Republic of Letters, centred on reason and religious freedom, would align with the basic idea of freedom of expression and discussion, instanced in Immanuel Kant’s elaboration of his 1784 “motto of Enlightenment” (sapere aude): “The public use of man’s reason must always be free, and it alone can bring about enlightenment among men” (Kant, 1991: 55). Earlier in the century, the Anglophone debate had already moved to a new frontier by confronting post-publication punishment and particularly use of the law of seditious libel against political criticism. As often the case, argument was as much product as cause of change. After the lapse of press licensing, the restricted meaning of liberty of the press became the new battleground. In 1704, Lord Chief Justice Holt notoriously pronounced John Tutchin and his Observator guilty of seditious libel with the declaration that “if People cou’d not be call’d to Account for possessing People with an ill Opinion of the Government, no Government cou’d subsist” (Goldie and Kemp, 2009: 117). A response that this confounded reason or rights was less visible than claims that such punishments contradicted England’s postrevolution styling as a land with a lineage of liberty. Tutchin himself, reworking the Miltonic Protestant–Catholic contrast in national terms in the context of war with France in 1706, contended that it was among “the peculiar Freedoms of English-men, that we are Slaves neither in Body or Mind. We breathe in a free Air, we think free, we are neither Pen or Tongue ty’d” (Goldie and Kemp, 2009: 310). This tradition-building was frstly a Whig cause – Whig history, indeed – but, as noted, all parties came to endorse liberty of the press as early construed, denouncing instead the excessive “licence” of their opponents. Already by 1712 it was being claimed that pre-publication censorship was a policy “long exploded by all Parties” (Goldie and Kemp, 2009: 269). Now in contention was whether the new-formed tradition in the liberty of the press carried with it a meaning that exceeded freedom from prior restraint, as an inherent extension rather than a different freedom. The push against a minimal construal was made particularly by opponents of the overbearing Whig governments of Robert Walpole, both country Tories and “Old Whigs” proclaiming “true Whig principles”. In 1723, the True Briton protested that liberty of the press was secured by “our Whig ancestors” in vain if licensing was replaced 29

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by ministerial harassment and intimidatory arrests (Hanson, 1967: 29, 53). The Craftsman placed the opposition press in a tradition of “Patriot-Whigs” who dared criticise corrupt ministers under the late Stuarts, then reached further back in time in referring readers drolly to “Whig Writers, ancient and modern, on this Subject”: in other words, Tacitus and others could have honorary place in an English patriot-Whig tradition (Craftsman, Feb 7, 1727; Sep 28, 1728). The English common-law offence of seditious libel endured until abolition in 2009 but ability and readiness to prosecute had always been subject to the political temper of the times. When David Hume embarked on an essay on liberty of the press, frst published in 1741, it was to explain, “How it happens that Great Britain alone enjoys this peculiar privilege”, foreigners being amazed at the “extreme liberty” of openly censuring government, even though general laws against sedition were strong. In revising the essay during unrest after the prosecution of the MP John Wilkes for seditious libel in 1764, Hume deleted the remark on sedition law and a second question relating to the liberty’s general advantages, which only accentuated the essay’s focus on explaining the liberty’s national peculiarity. His explanation, and contribution to the developing tradition, centred on characterising Britain’s post-revolution achievement as a political form balancing monarchical and popular “republican” elements, enabling each to see and curb the other’s tendency to excess of tyranny or licence – in context, between Walpolean executive power and that of the Bolingbroke opposition. Hume saw potential for free expression to be a “common right of man”, although like Tindal this was frstly because he saw reading as essentially pacifc and free of “inconveniences”, another observation later deleted (Hume, 1985: 9–13, 604–5). The case against a widened conception of press freedom is indelibly associated with the jurist and Tory MP William Blackstone, whose intervention can be seen as an attempt to defne prescriptively the tradition emerging from the revolution. In his authoritative Commentaries, in the same decade as the Wilkes affair, Blackstone declared that liberty of the press, “properly understood”, “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published”. The defnition refected his view that the English constitution achieved “theoretical perfection” when press licensing lapsed and habeas corpus was regularised in the previous century (Blackstone, 1769: 151, 432). Blackstone’s concern to fx the tradition, along with England’s common-law heritage, was political as much as lexical in context. Jeremy Bentham assailed Blackstone for offering facts rather than reasons in the Commentaries, a legal “Expositor” rather than critical “Censor” (Bentham, 1988 [1776], 7–8). But clearly Blackstone was not simply delivering a factual exposition about the meaning of liberty of the press; he was engaged in a defnitional dispute over its meaning and scope within an English tradition. The eighteenth-century alternative to explicit appeal to the Whig past was increasingly to approach freedom of expression as shared national tradition, debated in terms of English constitutional values, the debate Blackstone sought to conclude. Thomas Erskine, the great courtroom defender of an expanded view of liberty of the press in the later eighteenth century, while politically Whig, knew better than to rely on one side of a partisan past at trial. Opposing punishment for seditious libel in 1784, he presented his position as one long shared by all sides, agreed on the value of enlightening the people about government, this being the view of “Mr. Locke, the greatest Whig that ever lived in this country, and likewise of Lord Bolingbroke, the greatest Tory in it” (Erskine, 1810: 182). Having founded the Craftsman, Bolingbroke seemed to embody the entwining of Tory and Whig in a “patriot” national tradition of free-speaking opposition. 30

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With the centenary of England’s revolution intersecting those in America and France, and previously sporadic trials for seditious libel mounting amidst concerns over domestic and overseas radicalism, appeal to a post-1688 tradition in free expression muddied the question of who the anti-traditionalists were. The 1695 “end of censorship” was effectively redated to 1688, and trials for seditious libel, most famously against Thomas Paine, were painted as innovations contrary to underlying constitutional values, extending back to the revolution and beyond. The Declaration of the Friends of the Liberty of the Press (1793) penned by Erskine, declared that freedom to write on government was a truth founded on English history and character, having “ever been acknowledged by our greatest statemen and lawyers as the principal safeguard of that Constitution, which liberty of thought originally created, and which a Free Press for its circulation gradually brought to maturity” (8, 10). At Paine’s trial for the Rights of Man a month earlier, Erskine had offered a historical account that traced seditious libel prosecutions to Star Chamber under Charles I, quoted extensively from Areopagitica, and invoked the status that the “ancient wisdom and liberal policy of the British constitution has allotted for the liberty of the press” (Howell, 1817: 413). It proved a fruitless defence, despite the 1792 Libel Act having deprived judges of sole discretion in determining seditious and malicious intent, a change born of appeal to another tradition, trial by jury (Kemp and McElligott, 2023). Erskine’s speech provides one of the earliest instances of free-speech tradition being characterised as “liberal”, though confrming the way the term as yet was more a synonym for a word like “generous” than naming an ideology (cf. Erskine, 1810: 39, 53).

Building an American tradition The idea that freedom of expression was “peculiarly our own” persisted in Britain (or England) even after the American and French revolutionary declarations of free speech, helped by backtracking in both countries around the turn of the century, with the 1798 Sedition Act in one, and the Terror then Napoleonic censorship in the other (Kemp and McElligott, 2023: 94). In the case of the newly constituted United States of America, and at uneven later dates in continental Europe, this was prelude to embedding a revolutionary or Enlightenment aspiration to free expression as constitutional tradition, in the USA partly by distancing its own nascent tradition from that of Britain. The difference was not self-evident, given that the minimalist wording of the First Amendment ratifed in 1791 – “make no law…abridging the freedom of speech, or of the press” – left a contextual dilemma over original intention and subsequent interpretation. Did it ratify the Blackstonian limit at pre-publication law inherited from Britain, as the Sedition Act implied, or throw off such confnes with the crown? The historian Leonard Levy argued that America in 1791 accepted a “legacy of suppression” that contradicted liberal assumptions about the First Amendment, then later decided that in practical and political terms Americans had taken a “bold” rather than “narrow” view of its purpose, prioritising a watchdog press over seditious libel law (Levy, 1960; Levy, 1985: viii, 348). In 1767 the appeal of the writer “Freeborn American” had been to an English birthright of free speech, matched by “no nation on the earth” (Levy, 1966: 96). With the birth of the new nation, James Madison characterised the Sedition Act as a throwback to monarchical tyranny, counterposing the British idea of free expression to “the American idea of it” (Levy, 1966: 213). Madison and fellow campaigner John Nicholas distinguished British government, where offcers of the crown shared the monarch’s inviolability to criticism, and American 31

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government, whose offcers were servants of the people and open to their criticism, perhaps even if untrue, Nicholas suggested. “In Great Britain”, he declared, “writings are seditious, though they are true, if they tend to bring a public offcer into contempt” (Levy, 1966: 180; Lewis, 2007: 16–19). This was a tendentious reading of the British case, past and present, but effectively attached the case for free expression to the post-revolution quest for American identity, on a path to American exceptionalism as core to that identity. From 1791, the United States had a separate story to tell about freedom of expression, a separate tradition to build, sometimes tracing roots in the British past – back to Star Chamber and Areopagitica – but equally often beginning (and ending) with the First Amendment. That story could begin in 1791 or, given limited nineteenth-century developments after the Sedition Act’s expiry in 1801, often commences from the early twentieth-century wartime revival of sedition legislation and the ensuing decades of unfolding First Amendment jurisprudence. America’s free-speech tradition, in a sense, is between one and four centuries old. The notion of a shared liberal tradition in freedom of expression, binding the west and then the democratic world, has to accommodate this transatlantic divergence in the timescale and tenor of tradition, visible when European liberals with their balancing of freedom of expression and social responsibility are perceived as distinctly lukewarm on liberty by libertarians and some liberals across the Atlantic. A history of American free speech as “a tale without end” begins, “Why are we different? Where does our extraordinary freedom come from?” (Lewis, 2007: ix). Historical peculiarity in national tradition is a recurrent feature in the story of freedom of expression.

Mill and the liberal tradition The persistence of national narratives is a reason the self-conscious notion of a transnational “liberal tradition” is a relatively late arrival in the story, explored in this fnal section, necessarily summarily. The term “liberal” entered politics in the early nineteenth century through European parties carrying the label, including in Britain, though the notion of liberalism as a detachable and distinct set of ideas took further time. The quintessential nineteenth-century case for free expression in the liberal tradition, the capstone case mentioned earlier, is that of John Stuart Mill in On Liberty, particularly its second chapter, “On the Liberty of Thought and Discussion”. A surprisingly little-remarked aspect of this liberal classic, frst published in 1859, is that Mill only referred once to “liberalism” and did so to criticise its “continental” strand for supposing a government identifed with the people could not infringe people’s liberties (Mill, 1989: 7). This accords with Mill’s divergence from the Benthamite utilitarianism of his youth, by which “the greatest happiness of the greatest number” mandated free expression, and for Bentham particularly liberty of the press, but was also its measure, as it was of all rights, whose origins could not trump present social beneft. Bentham saw no confict and laboured to spread his tradition-blind doctrine, though partly by alerting European publics to the superior traditions of free political criticism in England and the “Anglo-American United States” (Bentham, 2012: 31). Benjamin Constant in France, praising Bentham’s intent, explicitly eschewed using the standard English example in order to argue for “the advantages of press freedom independently of any constitution”, while urging constitutional rights partly independent of immediate utility, without which free expression would be “precarious” and “men of enlightenment” forced to oppose any restriction at all, whereas with such a guarantee, “freedom of the press can be appropriately restricted” (Constant, 2003: 117, 123–4). 32

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Mill too was wary of “judging universal questions by a merely English standard”, as he noted in his autobiography, and the interest in continental liberalism that this fostered led him to see an association between liberalism and the popular “censorship” praised by Bentham and others (including Jefferson) though a cause of concern for Mill (Mill, 1981: 63). The result was a work that took liberty of the press as such to be a battle won but yielding a new challenge in the form of authoritative public opinion, guiding government. Mill’s response was to seek to couple social advance through convergence on knowledge in a contest of ideas with the maintenance of divergent opinions and individuality: development and diversity, as advertised in the epigraph to On Liberty, quoting Wilhelm von Humboldt (Mill, 1989). Harm to others, not moralism or even social advance itself, was to be the limiting criterion. This was centrally the argument from truth but also both an argument from democracy and from fear of democracy. Mill’s On Liberty can be seen as a capstone less in “crowning” an earlier tradition than in registering a closing of the chapter in the history of free expression in which men of enlightenment were pitted against autocratic rulers, and the opening of chapters in which the governing authority of the people needed balancing by their own liberties. The liberal tradition tends to be traced as a continuous thread from the former into the latter, and on to the present, but it is not insignifcant that this is the work of hindsight, as is application of the label “liberal”. Mill would be elected to the British parliament in 1865 to represent the Liberal Party, and it would be odd to deny that his politics were liberal, but he did not think in terms of an identifably “liberal” tradition in free expression preceding his own contribution. As other nineteenth-century writers set out to trace systematically the lineages of free press and toleration, a Victorian preoccupation, the articulation of tradition grew stronger but as national tradition without mention of a liberal tradition, an example being Anthony Andrews’s classic History of British Journalism, published in the same year as On Liberty (Andrews, 1859).

Liberal tradition as twentieth-century construction A concluding thought, then, is that conscious attempts to make a tradition of freedom of expression are found early in the tradition’s own historical span, but its identity as an specifcally liberal tradition was forged later than might be supposed. The suggestion here is that the “liberal tradition”, so construed, only dates from around the time Collingwood wrote in the 1930s, in a context of authoritarian right and left casting a shadow on open expression in Europe and beyond. In the same decade the First Amendment, after 140 years, fnally found favour as guarantor of free speech from the majority and not just dissenting opinion in the US Supreme Court, the views of Holmes having begun to “deposit a liberal tradition”, as Harold Laski assured him (Waldron, 2012: 23; Holmes and Laski, 1953: 594). The idea of a “liberal tradition” more generally emerged within political science in the 1930s, as recent scholarship has shown (Bell, 2014; Gunnell, 2001). It was consolidated as a label over subsequent decades both by its defenders and developers, notably John Rawls in the post-war period, and by critics who saw liberal tradition as complicit with various foes: with individualistic market liberalism by socialists and social democrats, with socialistic progressivism by conservatives and libertarians, with patriarchalism by feminists (Bell, 2014; Gunnell, 2001; Forrester, 2019). In 1962 frst appeared Habermas’s account of the “liberal model” of a democratic public sphere, initially in German, traced from English roots in a manner explicitly “less bound to the specifcs of the historical material” than to a sociologically “stylized” 33

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retelling of the liberal story (Habermas, 1989 [1961], xviii–xix). The result has been called “impeccably liberal history, with an unhappy ending” derived from Marxism as democratic norms ran up against the fact of media commercialism (Curran, 2002, 44). Late-century neoliberalism and corporate media power provided a backdrop against which the liberal tradition or liberal narrative in free expression and media history continued to be identifed for radical critique as narrow and naïve, although acknowledged to need “recasting” not “abandonment”, the problem being “deterioration of the best of the liberal tradition” (Curran, 2002: 41; McChesney, 2017; Curran, 2011; Steel, 2012). In the twenty-frst century, Enlightenment liberalism and its associated tradition in freedom of expression continue to merit critical inquiry.

Notes 1 “Freedom of Speech in the Liberal Tradition” (2002) is the title of a section in a special issue of Philosophy & Social Criticism 48(4). 2 The full Leveson Inquiry report is available from the UK government website at : https://assets .publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/fle/270939 /0780_i.pdf.

References Andrews, A. (1859) The History of British Journalism, Vol. 1 (London: Richard Bentley). Bell, D. (2014) “What is Liberalism?,” Political Theory, 42(6): 682–715. Bentham, J. (1988) A Fragment on Government (eds.) J.H. Burns and H.L.A. Hart (Cambridge: Cambridge University Press). Bentham, J. (2012) On the Liberty of the Press, and Public Discussion, and other Legal and Political Writings for Spain and Portugal (ed.) C. Pease-Watkin and P. Schofeld (Oxford: Clarendon Press). Bird, W. (2023) Religious Speech and the Quest for Freedoms in the Anglo-American World (Cambridge: Cambridge University Press). Blackstone, W. (1769) Commentaries on the Laws of England: Book the Fourth (Oxford: Clarendon Press). Butterfeld, H. (1944) The Englishman and His History (Cambridge: Cambridge University Press). Collingwood, R. G. (1989) Essays in Political Philosophy (ed.) D. Boucher (Oxford: Clarendon Press). Constant, B. (2003) Principles of Politics Applicable to All Governments (ed.) E. Hoffmann, trans. D. O’Keeffe (Indianapolis: Liberty Fund). Como, D. (2020) “The Origins of the Concept of Freedom of the Press,” in R. G. Ingram, J. Peacey and A. J. Barber (eds.), Freedom of Speech, 1500–1850 (Manchester: Manchester University Press): 98–118. Copeland, D. A. (2006) The Idea of a Free Press: The Enlightenment and Its Unruly Legacy (Evanston: Northwestern University Press). Curran, J. (2002) Media and Power (London: Routledge). Curran, J. (2011) Media and Democracy (Abingdon: Routledge). Erskine, T. (1810) The Speeches of the Hon. Thomas Erskine … Vol. 1 (London: J. Ridgway). Forrester, K. (2019) In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy (Princeton: Princeton University Press). Freeden, M. (2015) Liberalism: A Very Short Introduction (Oxford: Oxford University Press). Goldie, M. and Kemp, G. (eds.) (2009) Censorship and the Press, 1580–1720, Vol. 4: 1696–1720 (London: Pickering & Chatto). Gunnell, J.G. “The Archaeology of American Liberalism,” Journal of Political Ideologies 6(2): 125–145. Habermas, J. (1989 [1962]) The Structural Transformation of the Public Sphere, trans. T. Burger (Cambridge: Polity Press). Hanson, L. (1937) Government and the Press, 1695–1763 (Oxford: Oxford University Press). Holmes, O. W. (2010) The Fundamental Holmes, ed. R. K. L. Collins (Cambridge: Cambridge University Press).

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Enlightenment and the liberal tradition Holmes, O. W. and Laski, H. (1953) Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935, Vol. 1 (Cambridge: Harvard University Press). Howell, T. B. and Howell, T. J. (eds.) (1817) AComplete Collection of State Trials, Vol. XXII (London: Longman). Hume, D. (1985) Essays Moral, Political, and Literary (ed.) E. F. Miller (Indianapolis: Liberty Fund). Ingram, R. G.Peacey, J., and Barber, A. W. (2020) Freedom of speech in England and the Anglophone World, 1500–1850 (Manchester: Manchester University Press). Jay, M. (2022) Genesis and Validity: The Theory and Practice of Intellectual History (Philadelphia: University of Pennsylvania Press). Kant, I. (1991) Political Writings (ed.) H. Reiss (Cambridge: Cambridge University Press). Keane, J. (1991) The Media and Democracy (Cambridge: Polity Press). Kelley, D. and Donway, R. (1990) “Liberalism and Free Speech,” in J. Lichtenberg (ed.) Democracy and Mass Media (Cambridge: Cambridge University Press): 66–101. Kemp, G. (ed.) (2009) Censorship and the Press, 1580–1720, Vol. 3: 1660–1695 (London: Pickering & Chatto). Kemp, G. (2012) “The ‘End of Censorship’ and the Politics of Toleration, from Locke to Sacheverell,” Parliamentary History, 31: 47–68. Kemp, G. (2019) “Locke the Censor, Locke the Anti-Censor,” in J. Champion, J. Coffey, T. Harris and J. Marshall (eds.) Politics, Religion and Ideas in Seventeenth- and Eighteenth-Century Britain: Essays in Honour of Mark Goldie (Woodbridge: Boydell and Brewer): 161–180. Kemp, G. and McElligott, J. (2023) “Legal Contexts: Licensing, Censorship and Censure,” in N. Brownlees (ed.) The Edinburgh History of the British and Irish Press, Vol. 1 (Edinburgh: Edinburgh University Press): 77–100. Leveson, B. Lord Justice (2012) An Inquiry into the Culture, Practices and Ethics of the Press: Report, Vol. 1 (London: Stationery Offce). Levy, L. W. (1960) Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge: Harvard University Press). Levy, L. W. (ed.) (1966) Freedom of the Press from Zenger to Jefferson: Early American Libertarian Theories (Indianapolis: Bobbs-Merrill). Levy, L. W. (1985) Emergence of a Free Press (New York: Oxford University Press). Lewis, A. Freedom for the Thought that We Hate: A Biography of the First Amendment (New York: Basic Books). Locke, J. (2019) Literary and Historical Writings (ed.) J. Milton with B. Chua, G. Kemp, D. McInnis, J. Spurr and R. Yeo (Oxford: Oxford University Press). Martin, R. W. T. (2001) The Free and Open Press: The Founding of American Democratic Press Liberty (New York: NYU Press). McChesney, R. W. (2017) “Liberalism and the Media,” in A. Abraham-Hamanoiel, et al., Liberalism in Neoliberal Times (London: Goldsmiths Press): 89–94. Mill, J. S. (1981) Autobiography and Literary Essays (ed.) J. M. Robson and J. Stillinger (Toronto: University of Toronto Press). Mill, J. S. (1989 [1859]) On Liberty (ed.) S. Collini (Cambridge: Cambridge University Press). Milton, J. (1959) Complete Prose Works of John Milton, Vol. II, 1643–1648 (ed.) E. Sirluck (New Haven: Yale University Press). Peters, J. D. (2005) Courting the Abyss: Free Speech and the Liberal Tradition (Chicago: University of Chicago Press). Rushdie, S. (2012) Joseph Anton: A Memoir (New York: Random House). Sabine, G. H. (1951) A History of Political Theory (London: George G. Harrap & Co.). Schauer, F. (1982) Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press). Siebert, F. S. (1952) Freedom of the Press in England, 1476–1776 (Urbana: University of Illinois Press). Spinoza, B. (1689) A Treatise Partly Theological, and Partly Political (London: s. n). Steel, J. (2012) Journalism and Free Speech (Abingdon: Routledge). Waldron, J. (2012) The Harm in Hate Speech (Cambridge: Harvard University Press). Waldron, J. (1993) Liberal Rights: Collected Papers, 1981-1991 (Cambridge: Cambridge University Press).

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3 HISTORIES OF IN/TOLERANCE Russell Blackford

Introduction The words “tolerance” and “toleration” cause endless confusion in academic and public debate, with continual attempts to defne, refne and redefne them. Some authors (e.g. King 1976, p. 13; Balint 2017, p. 24) reserve the word “tolerance” for rather minimal, even grudging, kinds of forbearance. Others head in the opposite direction and use it for something more positive and welcoming than, as they see it, mere toleration (Bejan 2017, p. 16; Spencer 2018, pp. xiv–xv). Again, some authors (e.g. Kamen 1967, p. 7) focus on non-persecution over religious differences – and indeed, this is an area of great historical and contemporary importance. However, there is a far wider range of things that a government, local population, organisation, group or individual might object to, or fnd disagreeable, and which might therefore lead to censorship, restriction or punishment. For current purposes, I hope to avoid these and other semantic shoals. I will not make any distinction between toleration and tolerance. My primary concern will, indeed, be with religious disagreement,1 but also with some reference to more general kinds of legal and social forbearance. There are wider understandings of toleration/tolerance, but I am focused on ideas, beliefs, expression, practices – and so on – that somebody objects to or dislikes, yet puts up with to a greater or lesser extent. One question that then arises is when (and how far) we should view strong expressions of objection or dislike as, themselves, unacceptably intolerant. Some contributors to contemporary debates promote what they see as more positive concepts than mere toleration, such as public recognition of various cultural or social identities (e.g. Galeotti 2002; Modood 2019). This can seem attractive, but it can also be employed to justify new kinds of censorship.

Religious disagreement beyond the modern West Small pre-tribal and tribal societies might seldom confront deep divisions and conficts over religious disagreement. The potential develops as societies grow, reach new levels of organisational complexity and intellectual sophistication and come into close contact, often involving trade, immigration or warfare. Religious disagreement arises in many societies, so for

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comparison, contrast and perspective, it is worth considering experiences outside the modern West. In this section, therefore, I will comment briefy on religious disagreement in other great civilisations. Later, however, I will return to events in European history that left behind an invaluable and unique trove of ideas. The most ancient states of the Near East and Europe were tolerant of many gods and forms of worship. The tendency was toward syncretism, rather than strict enforcement of a particular cult. Narratives of great cultural and religious importance appeared in these ancient states, but nothing like a body of sacred and unquestionable scripture. In Greco-Roman antiquity, no single understanding of the gods and their deeds was compelled, but there could be some limits to freedom of religious thought. We can fnd cases in ancient Greece where especially unorthodox cults, philosophies and naturalistic explanations of the universe, including outright atheism, were not regarded as tolerable (Whitmarsh 2016, pp. 117–124). There was no separation of religion and the state in ancient Rome, as the imperial authorities ran an offcial cult, but the Romans did not suppress the religions of the territories they conquered. Syncretism prevailed, and foreign cults were welcomed so long as they allowed participation in the imperial rites. These invoked the gods of Rome for collective purposes relating to success and prosperity in the natural world. However, Rome’s tolerance ran out when it came to Christians, who refused to take part in the rituals of any god but their own and, indeed, “proclaimed that the pagan gods did not exist or were malevolent demons” (Zagorin 2003, p. 5). This obstinacy and fanaticism, as the Romans viewed it, led to violent, though sporadic, persecution of Christians, especially in the third century. To simplify somewhat, the outer boundary of toleration was reached in classical antiquity, including pagan Rome, when novel ideas or belief systems seemed to threaten the relationship between the state and the gods. The issue here was not the salvation or damnation of individual souls in an afterlife; what was at stake, rather, was the success of the Empire and its people in this world, whether, for example, in harvest or war. As we’ll see, this contrasts sharply with the perceptions of Christian rulers in late antiquity and beyond. We can also fnd tendencies toward syncretism and religious tolerance in the great civilisations of India and China, though these had distinctive aspects. Rajeev Bhargava makes the guarded claim that “at crucial junctures in Indian history, certain conceptual spaces were opened up that, under certain conditions, and provided we can build an appropriate narrative, can be seen to contribute to the growth of modern secularism” (Bhargava 2014, p. 174). As an example, he discusses the edicts on religious coexistence issued by the Buddhist emperor Asoka in the third century BCE. These called for free interaction and civility – and what might now seem an extreme level of mutual restraint and courtesy – among all religions and sects. Asoka discouraged treating other religions as rivals to one’s own or engaging in ostentatious support or advocacy of one’s own religion. The latter, at least, would require far more than an environment of mutual forbearance. Scholars such as Bhargava argue that the promulgation of such edicts is itself evidence that they were needed: They suggest a background of confict whose details are no longer accessible. At this point in Indian history, there may have been elements of a struggle between worldviews that had clashing moral, social and soteriological ideas. In particular, fundamental doctrines in Vedic and early Upanishadic religion may have come under challenge from later Upanishadic teachings and from Buddhism (Bhargava 2014, p. 183; Kaviraj 2014, pp. 236–239). In any event, there is evidence that India’s ancient and medieval rulers – not just Asoka as an exceptional case – tended to permit, and indeed give patronage to, a variety of reli37

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gious groups, sects, ritual practices and philosophical schools. Sudipta Kaviraj identifes two theoretical strands in the policies of toleration pursued by these rulers. One was a recognition of separate spheres for political action and religious life, thus dividing public life into the respective felds “of religious and mundane matters”, leaving the former “to a kind of self-regulation, without political interference” (Kaviraj 2014, p. 253).2 The other, in a sense more positive, strand distinguished between the ruler’s choice of a personal religious/moral path and his public responsibility for the welfare of all religious communities within his territory. Both strands of thinking depended on pragmatic considerations relating to the limits of political power and on a philosophical acceptance of the diffculty in identifying a single, absolutely correct, body of religious and moral truth. We can fnd religious tensions throughout the recorded history of China, including hostility between popular religion (based around the worship of ancestors and local gods) and proponents of the so-called Three Teachings (Daoism, Confucianism and Buddhism). China’s religious history is also notable for the appearance, from time to time, of militant syncretic cults and for occasional efforts to suppress one religion or another. These efforts included anti-Buddhist persecutions by several emperors between the ffth and tenth centuries. At the level of local practice, however, all of these religions have tended to infuence each other and even blend into one (Oldstone-Moore 2015, pp. 118–119). Moreover, Daoism, Confucianism and Chinese Buddhism all developed doctrinal resources to justify attitudes of tolerance.3 From the beginning, Confucian scholars sought to infuence moral feeling and public policy, all in an effort to create a stable, successful and refned society. Yet, Confucian teachings also advocated an environment of general (though not unlimited) toleration. Confucianism encourages openness to ideas and an element of voluntary reticence about pressuring others to conform to our own views of what is best (Yu 2018). Similarly, the texts and traditions of Daoism include the idea of tolerating and accepting what strikes us as bad, and they encourage a wise reluctance to resort to violence or coercion (Liu 2018). Buddhism has viewed other religious traditions as, to some extent, its rivals, and has understood itself as superior to them as a source of right ideas and a spiritual path to Nirvana. But this is not the same as malice toward followers of other religions. Buddhism has sometimes developed concepts of forbearance toward others that show a resemblance to Western ideas of principled non-interference with rival religions – ideas that we might fnd in the work of thinkers such as John Locke (Schonthal 2018, p. 193). Distinctive aspects of Buddhist toleration include incorporating aspects of other religions’ iconography, mythology and rituals (Schonthal 2018, p. 193). Nothing that I have sketched above is intended to idealise Indian and Chinese religious history or the specifc religions of India and China. I do not claim that these religions were uniformly tolerant throughout ancient and medieval history, or even that we have a full and convincing record of their historical interactions with each other and with other religions such as Islam. We could surely fnd many examples where the adherents of Eastern religions have been less than tolerant, but to the extent that the great civilisations of Asia were able to avoid religious persecutions and warfare, some reasons for this might be found in the traditions of the religions themselves. Islam deserves particular attention since it claimed superiority over all other religions within the territories conquered by Muslim rulers. At the same time, it developed its own approach to toleration, admittedly of a limited sort. With certain exceptions, such as the Almohad Caliphate of the twelfth and thirteenth centuries, the medieval Islamic empires 38

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tended to be more tolerant than the Christian kingdoms of Europe, but they maintained an explicit hierarchy of religions. Among the subordinate religions, Judaism and Christianity were favoured for their monotheism and because of an Islamic belief that Jews and Christians had received genuine revelations from God via prophets such as Moses and Jesus. They were allowed to practise their religions, and their local communities were granted some autonomy. They were, nonetheless, subordinated to Islam in numerous ways. Above all, Christians and Jews were not free to proselytise, build new places of worship or offer any kind of public challenge to Islamic doctrine. When Muslim rulers gained control of large areas of the Indian subcontinent, beginning in the thirteenth century, they had little choice but to apply the Islamic approach to toleration more widely. They found themselves governing territories in which their fellow religionists were greatly outnumbered by Hindus, whose beliefs, traditions and practices were radically alien to those of Islam. Reviewing the evidence, Kaviraj concludes that a general rule of “noninterference in the social affairs of their Hindu subjects appears to have been the dominant political practice” of Muslim rulers (Kaviraj 2014, p. 247).4 Kaviraj explains how this was rationalised and theorised in Islamic political thought during the Mughal Empire of the sixteenth to eighteenth centuries. If we follow his analysis, the Mughal rulers – at least the more enlightened ones – saw themselves as having a responsibility for the spiritual security and well-being of their subjects, including their non-Muslim subjects (Kaviraj 2014, p. 250–251). Moreover, the Mughals seemingly took the religions of communities over which they ruled as given, in line with the approach of Muslim rulers elsewhere whose dealings were more with Christians and Jews. At a minimum, this implies a policy of toleration rather than persecution or forced conversions. For now, we can conclude that some ancient or non-Western civilisations had considerable resources for managing religious disagreement, and they have left valuable – if incomplete – histories of their approaches.

Christianity’s discontents Christianity began to obtain secular power in late antiquity, initially under the reign of the Roman emperor Constantine the Great.5 Once given an opportunity, Christianity became a persecutorial religion in its own right. Christian scribes and offcials censored books containing ideas that were thought to have demonic origins. This included works from important schools of pagan philosophy, as well as books on magic, astrology and divination. As Dirk Rohmann sums up the Christian viewpoint of the time, “Book-burning could prevent readers from burning in hell” (Rohmann 2016, p. 298). As a result, materialist philosophical systems and pagan critiques of Christianity were successfully suppressed for many hundreds of years, and many important texts remain lost, among them original works by Epicurus, Porphyry and Celsus.6 The picture that emerges from Rohmann’s research is that Christian censorship in late antiquity took place on a regional and temporary scale, at least until the age of Justinian (reigned 527–565). Nonetheless, instances of effective formal and censorship were real, and often highly consequential. In the event, much in the Greek and Roman traditions was crushed in late antiquity, and the ancient culture of free thought and philosophical debate was decisively rejected.7 Constantine began the state persecution of Christian heretics in 325, following the Council of Nicea, and thereafter, with little respite, the Church implacably opposed anything 39

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that could be construed as heresy. It is notable, however, that Saint Augustine, who developed an infuential defence of coercing heretics, never favoured the death penalty for them. Likewise, Augustine theorised a relatively mild attitude to the Jews compared to what came later. For several hundred years, this largely prevailed. Though subordinated and persecuted, they were allowed to survive within Christendom during late Christian antiquity and the early Middle Ages. During the eleventh and twelfth centuries, however, these attitudes to heretics and Jews hardened considerably within Latin Christendom. At this time, the death penalty for heresy became common. Jews were now regarded as children of Satan in human form and as perpetrators of hideous crimes. There is a record of extreme anti-Jewish violence, and the Jews were eventually expelled from most kingdoms and regions of Western Europe. We can pass over other numerous low points in the Church’s record of persecution and censorship prior to the sixteenth-century Protestant Reformation, since this story has often been told. The Reformation itself provides the more immediate background to modern Western ideas of religious toleration. Martin Luther originally advocated toleration by the state within certain limits of Christian doctrine, but was soon calling for suppression of the Catholic Mass. Other major reformers, such as Huldrych Zwingli and John Calvin, were implicated in persecuting and killing heretics. Most notorious was Calvin’s involvement in the heresy trial and subsequent execution of the anti-Trinitarian theologian Michael Servetus, who was burned at the stake in Geneva in 1553. This event, in particular, prompted early calls for religious toleration, most prominently from Sebastian Castellio, who soon became a tireless – and in consequence, hated – critic of Calvin. Castellio argued on theological and other grounds for toleration of heresy, or at least for mercy and gentleness in the correction of heretics. Throughout the sixteenth and seventeenth centuries, Christendom was torn apart by religious violence, including warfare and fatalities on scales unprecedented in Europe. Such confict, generated by deep, seemingly unstoppable, religious dissent, prompted not only pragmatic deliberations about a safer way forward but also far-reaching philosophical refection on attitudes to religious dissent and the proper roles of churches and secular governments. Following Castellio, many others offered valuable ideas. Pierre Bayle, Roger Williams, Thomas Hobbes, Baruch Spinoza and John Locke made especially infuential contributions – none more than Locke’s A Letter Concerning Toleration, originally published in 1689. All these theorists developed rich and distinctive positions, explored with subtlety and psychological insight. We have thus inherited “a massive body of writing by many different authors exploring the problem of religious toleration from many angles and presenting an array of arguments in behalf of liberty of conscience, mutual tolerance and diversity” (Zagorin 2003, xiii). It should be clear, however, that we did not obtain this because Christianity in its heyday was a tolerant religion. It was quite the opposite, and its potential for intolerance came from the stakes as Christians perceived them; that is, the eternal salvation or damnation of souls was in balance, and salvation depended on the exact formulation of the correct doctrines.

Locke and later Locke’s arguments included a mix of theological and more purely philosophical considerations, the latter based on his own variant of social contract theory. According to this, men and women enter into social arrangements for mutual assistance and defence. This provides 40

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a legitimate, but relatively narrow, role for the secular ruler, who is concerned with protecting the citizens’ interests in things of the empirical world, such as their property and bodily safety. Thus, the ruler’s activities should not extend to “the Salvation of Souls” and whatever might be our fate in the afterlife (Locke 1983, p. 26). By contrast, Locke thought, the fundamental aims of a church are the worship of God and the spiritual salvation of its members. From this, it follows that the state and the churches have radically different functions. On such an interpretation of political power and its basis, the stakes when the state acts within its proper limits no longer include the salvation of souls. This removes the central (though not only) reason for religious persecutions by a Christian government. While twentyfrst-century ideas of religious toleration have more than one source, Locke was admired by leading fgures in the eighteenth-century Enlightenment and by key members of the United States’ founding generation such as James Madison and Thomas Jefferson (Zagorin 2003, p. 302). Locke infuenced thinkers who, in turn, infuenced political assumptions today. Similar views to his have tended to prevail in Western liberal democracies, with the consequence that they generally do not enforce any religious orthodoxy. The state, with its organised coercive power, is usually understood as existing and acting for secular reasons. Locke’s idea of a limited role for secular government had ancient and medieval precursors, but it was daring in the seventeenth century (Zagorin 2003, p. 265). Furthermore, it contained the seeds of even more radical ideas. It could easily imply that the state, at least – if not a Christian society as a whole in its interactions and practices – should tolerate a very wide range of thought and discussion, extending beyond the area of religion, and indeed that it should tolerate much non-conforming and supposedly immoral conduct. If such conduct endangered the soul but had little or no effect on others’ property, bodily safety and other interests in things of this world, perhaps it should be permitted by the secular ruler. It might even be asked: If so much could be permitted without offcial punishments, might there even be benefts from allowing a plurality of ideas and ways of life? Over time, Western societies began to answer in the affrmative. Varied ways of life might suit people of varied characters and temperaments. Unusual lives and eccentric people might demonstrate worthwhile possibilities for other citizens to explore. New and unorthodox ideas might include new knowledge and wisdom. Such ideas lay ahead, however, and were by no means Locke’s emphasis. We can fnd versions of them in the work of eighteenth-century Enlightenment thinkers, and they crystallise in the writings of nineteenth-century liberals such as John Stuart Mill. For Locke and other seventeenth-century defenders of toleration, meanwhile, there remained a pressing question of the extent to which lawmakers should allow public disagreement on religious topics, even in a society where the state did not actively persecute heretics.

Toleration and the limits of free speech Most notoriously, Locke argued that it was not acceptable to tolerate atheists, anybody at all who lacked belief in an afterlife with rewards and punishments or adherents of religions whose doctrines might threaten secular society.8 For atheists and other sceptics about the afterlife, the fear was that they could not be trusted to keep the oaths by which society itself was bound together (Locke 1983, pp. 49–51). In Locke’s approach, then, some ideas are too dangerous to permit; that is, they are too dangerous to the functioning of secular society. Indeed, it was a common fear in the seventeenth century that the social order could be damaged by mere expressions of profound disagreement with the religious views of others, 41

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even if not served with especially strong rhetoric. The thought here is that being disagreed with on such profound and identity-shaping topics is, in itself, deeply offensive and likely to provoke a violent response. If accepted into public policy, this line of thought implies a form of limited religious toleration in which the state does not actively search out heretics but much religious (and anti-religious) speech and expression is not tolerated if uttered publicly. From the viewpoint of someone like Thomas Hobbes, who valued civil peace above all else, this development would not seem much of a loss. But for someone engaged in Christian evangelism – or alternatively, in spreading anti-religious philosophical views – any such policy, with whatever supporting sanctions, is disastrous. Thus, Roger Williams, a great seventeenthcentury pioneer of church-state separation, and the founder of Rhode Island as a British colony, set what might seem a very low bar for mutual civility in disagreements over religion. This involved no more restraint on expressing disagreements than was needed to keep discussion alive. That could mean avoiding the worst expressions of personal contempt, but little more. As Teresa M. Bejan (2017, pp. 70–76) describes, however, even Williams had limits to his forbearance. These were reached with the Quakers of the time, who engaged in such disruptive and confrontational tactics – removing their clothes in public, shouting down opponents and much else – as to make reasonable discussion with them appear impossible, at least to Williams (Bejan 2017, pp. 70–76). Williams was a man of formidable learning, but also a fery preacher of the Christian gospel. By the standards of many of his contemporaries, as well as those of modern-day theorists of multicultural toleration, he was “a religious fanatic of exemplary intolerance” (Bejan 2017, p. 54). To such a man, much conduct might seem immoral and intolerable, but he needed almost unrestricted freedom of religious speech for his work of saving souls. From such a viewpoint, “A tolerant society must be prepared to tolerate quite a lot of outrage, offense, and discomfort – and to tolerate a lot of incivility, too” (Bejan 2017, p. 79). If we don’t share Williams’ priorities, we might nonetheless wonder how far to go in restricting the language of such people. Is it realistic or reasonable to demand that they respect the values, beliefs and practices of others whom they see as on a path to damnation? Over the past four decades, similar issues have become hot-button ones for liberal democracies. On one account, cogently expressed by Tariq Modood, “othered” groups wish for more than the traditional kind of tolerance, as forbearance, grounded in Enlightenment and liberal thought. Rather, they strive to replace “negative and exclusionary stereotypes with powerful and prideful identities” (Modood 2019, p. 78). But if this ambitious goal is integrated into public policy, there are far-reaching implications for the introduction of formal or informal censorship. An obvious question is whether it is democratically legitimate for individual citizens to be coerced (whether by the state or by the efforts of private actors) to accept anyone else’s “powerful and prideful identities”. It seems that there could be many circumstances where citizens have reasons not to grant this kind of acceptance or recognition. Most poignantly, should citizens be compelled to accept “prideful” self-identifcations by groups with which they are in deep disagreement? To specify further, a certain group might be defned by religious, moral or ideological beliefs that some citizens consider false and possibly dangerous. The latter might tolerate this group in almost all respects (e.g. they might not call for it to be banned or persecuted). They might, however, be very critical of it, and might not perceive it in the same way as its leaders and members do. In these circumstances, it might be reasonable for the state, or someone else with authority or power, to prohibit discrimination against members of the group in certain spheres such 42

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as employment. At the same time, it might not be reasonable to expect citizens to abandon any deep objections to the group’s beliefs, to censor their critical thoughts about the group or to cooperate with its efforts to be viewed in an entirely positive light. In fairness to Modood, he acknowledges this general point in respect to criticism of Muslims, or of Islam itself, which is the example that most concerns him. Indeed, he offers some guidelines for criticism of Muslims or Islam (Modood 2019, pp. 84–86). Some of these, such as not overgeneralising about Muslims and what they believe, are doubtless good sense that could lessen the extent of anti-Muslim bigotry. But used in combination, any guidelines need to be very fexible indeed if they are not to constrain what might be said by people who have principled objections to Islam or to traditional practices and mores associated with it.9 What applies to criticism of Islam can be extended to virtually any religion, moral code or political ideology. Any attempt to push beyond a policy of mutual forbearance can lead to censorship of at least some people’s serious and principled beliefs, and the ways in which these are expressed. That is: If we push beyond toleration for certain things, some other things will not even be tolerated.10

Conclusion As human societies reach a certain size and complexity, a potential develops for divisions and conficts over religious and other deep disagreements. This potential has faced many societies from the earliest known states to the present day. We can fnd similar problems across a variety of civilisations, and sometimes the solutions themselves are similar, as when Christian, Islamic, Buddhist and other thinkers have been attracted by the notion of separate spiritual and political domains. The extent and seriousness of confict over deep disagreements can vary. For example, it can depend on features of the locally dominant religion or religions, as well as the state’s understanding of its own role and limits. The state authorities might see their proper role in any of several ways. For example, the state might assume some direct responsibility for saving the souls of its individual citizens. In that case, it will need to identify and try to promote – or even impose – the “correct” religion. On the other hand, any spiritual role for the state might be limited to public sacrifces and other rituals aimed at obtaining divine favour for the society’s worldly prosperity. Alternatively, the state might see itself as having no role, or only a minimal role, beyond maintaining public order. The role of the state, as locally understood, will affect what is supposedly at stake when the authorities take action, or choose not to do so, and exactly what ideas, beliefs, practices and range of expression the authorities believe they can tolerate or think they must persecute. The soteriological and eschatological doctrines of traditional Christianity suggest that we are all in danger of eternal hellfre, while also having a chance of eternal bliss. The word “eternal” conveys the immensity of the stakes for even one soul. If the state has a role here, it is surely an urgent one and such high stakes could arguably justify burning books or more extreme actions such as burning heretics. Once this point is grasped, it is not surprising that Christianity has tended to be an exceptionally intolerant religion whenever it has obtained access to secular power. Paradoxically or not, however, the Christian kingdoms of early Western modernity also produced a legacy of rich texts on religious toleration. Today, many questions remain as to what can and cannot be tolerated in liberal democratic societies, not least questions about how much room should be allowed for harsh expressions 43

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of deep disagreement. It appears that similar issues arose within ancient Indian civilisation over two millennia ago; they have appeared in other times and places; and of course, they were central to the sixteenth- and seventeenth-century debates about toleration in Europe and North America. All of these histories and texts contain much that is worth returning to, again and again, as we try to fgure out our own social predicament.

Notes 1 For current purposes, there is no need to enter the diffcult debate about whether there is really a unitary phenomenon of “religion”, whether there are really “religions”, whether (for example) pagan Greco-Roman polytheism, Christianity, Hinduism and Confucianism are all the same kind of thing, and so on. For this debate, the best place to begin is Smith 1963. Given my priorities in this chapter, combined with reasons of space, I will need to address such issues elsewhere. 2 As we will see, this resonates with certain views (such as Locke’s) that arose in Europe in the seventeenth century. 3 Confucianism is, historically, one of the “Three Teachings”; it is not, however, one of the religions offcially recognised within the People’s Republic of China, whose ruling regime considers it a body of moral and social thought. In any event, Confucian teachings tend to blend, at the local level, into those of Daoism, Chinese Buddhism and popular Chinese religion. Again, the question of whether there are religions, and the question of whether, if so, Confucianism is one of them, will need another opportunity for discussion. 4 This is not to suggest that it was a uniform practice or to deny the current controversy within India over historical relations between Muslim rulers and the Hindu populations that they administered. 5 Constantine reigned from 306 to 337 CE, initially as a junior emperor in the Western Empire but eventually as sole imperial ruler. 6 We can, however, reconstruct much or most of the text of Celsus’ great anti-Christian treatise On the True Doctrine, since it was quoted extensively by the Church father Origen in his third-century rebuttal Contra Celsum. 7 For wide-ranging accounts, see Kirsch (2004); Freeman (2005); Freeman (2008); Gaddis (2005); Rohmann (2016); Nixey (2019). 8 Locke’s examples included, among others, doctrines requiring adherents to obtain secular power for their sect or church and doctrines requiring adherents’ allegiance to a foreign power. 9 For an effort of my own, with appropriate caveats, see Blackford (2012): 185–191. 10 To clarify, I am not denying that there could be viewpoints (Nazi race-hierarchy ideology might be a good example) or ways of expressing them (perhaps referring to hated demographic groups as snakes, rats, vermin and the like) that are so provocative of violence and discrimination that there is a case to locate them beyond the pale of legal or social toleration. It seems, however, that much robust expression of religious disagreement could fall well short of this while nonetheless breaching Modood’s guidelines – or any equivalent guidelines for religions other than Islam.

References Balint, P 2017, Respecting toleration: Traditional liberalism and contemporary diversity. Oxford University Press, Oxford. Bejan, TM 2017, Mere civility: Disagreement and the limits of toleration. Harvard University Press, Cambridge, MA. Bhargava, R 2014, “Beyond toleration: Civility and principled coexistence in Ashokan edicts,” in A Stepan & C Taylor (eds) Boundaries of toleration: Religion, culture, and public life, Columbia University Press, New York, pp. 173–202. Blackford, R 2012, Freedom of religion and the secular state, Wiley-Blackwell, Chichester. Freeman, C 2005, The closing of the Western mind: The rise of faith and the fall of reason, Vintage, New York. Freeman, C 2008, A.D. 381: Heretics, pagans, and the dawn of the monotheistic state, Overlook Press, New York.

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Histories of in/tolerance Gaddis, M 2005, There is no crime for those who have Christ: Religious violence in the Roman Empire, University of California Press, Berkeley. Galeotti, AE 2002, Toleration as recognition, Cambridge University Press, Cambridge. Kamen, H 1967, The rise of toleration, Weidenfeld and Nicolson, London. Kaviraj, S 2014, “Modernity, state, and toleration in Indian history: Exploring accommodations and partitions,” in A Stepan & C Taylor (eds), Boundaries of toleration: Religion, culture, and public life, Columbia University Press, New York, pp. 233–266. King, P 1976, Toleration, George Allen & Unwin, London. Kirsch, J 2004, God against the gods: The history of the war between monotheism and polytheism, Penguin, New York. Liu, X 2018, “All-embracing: A Laozian version of toleration,” in VA Spencer (ed), Toleration in comparative perspective, Lexington Books, Lanham, pp. 235–253. Locke, J 1983, A letter concerning toleration. Hackett, Indianapolis (Orig. pub. 1689.) Modood, T 2019, Essays on secularism and multiculturalism, Rowman & Littlefeld, London. Nixey, C 2019, The darkening age: The Christian destruction of the classical world, Mariner Books, New York. Oldstone-Moore, J 2015, “Chinese religion,” in W Deming (ed), Understanding the religions of the world: An introduction, John Wiley & Sons, Chichester, pp. 115–166. Rohmann, D 2016, Christianity, book-burning, and censorship in late antiquity, de Gruyter, Berlin. Schonthal, B 2018, “The tolerations of Theravada Buddhism,” in VA Spencer (ed) Toleration in comparative perspective, Lexington Books, Lanham, pp. 179–196. Smith, WC 1963, The meaning and end of religion: A new approach to the religious traditions of mankind. Macmillan, New York. Spencer, VA 2018, “Introduction,” in VA Spencer (ed), Toleration in comparative perspective, Lexington Books, Lanham, pp. ix–xxii. Whitmarsh, T 2016, Battling the gods: Atheism in the ancient world, Vintage, New York. Yu, K 2018, “Two conceptions of tolerating in Confucian thought,” in VA Spencer (ed), Toleration in comparative perspective, Lexington Books, Lanham, pp. 217–233. Zagorin, P 2003, How the idea of religious toleration came to the West. Princeton University Press, Princeton.

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4 LITERARY INFLUENCE AND LEGAL PRECEDENT Censorship in the Court of Chancery, 1710–1823 Paul Whickman Introduction and Southey v. Sherwood (1817) In 1817, Wat Tyler, a play written by Robert Southey over two decades earlier, was determined by the Court of Chancery to be potentially criminal. As poet laureate and then a 42-year-old conservative pillar of the establishment, Southey appeared at frst glance to be an unlikely author of seditious literature. Southey had written the play, or “dramatic poem”, in 1794 when he was just 19, never intending it for publication. The publishers Sherwood, Neely & Jones nevertheless produced their illegitimate edition in February 1817, much to Southey’s embarrassment. The existence of Wat Tyler, a work celebrating the rebel leader of the fourteenth-century peasants’ revolt and heavily critical of government and monarchy, demonstrated how far the pro-government, conservative commentator had travelled from the ideological radicalism of his youth. This was not helped by the fact that February 1817 also saw the publication of an article by Southey in the Quarterly Review. This lambasted the radicals of Southey’s own time for acting as “demagogues […] labouring to deceive the people” (Southey, 1816: 26).1 That Southey’s play celebrated a hero who appeared to be rather like this, including a scene where Tyler addresses the “Mob” and gives voice to the injustices they have suffered, served in the eyes of his critics to highlight Southey’s hypocrisy. The attempt to restrain Wat Tyler’s publication, however, backfred spectacularly. One of the most signifcant outcomes of the case, known as Southey v. Sherwood, was that Wat Tyler was disseminated more than ever, by a multitude of new, increasingly more disreputable publishers, with Wat Tyler soon becoming Southey’s most widely read work. Southey v. Sherwood then marks a signifcant moment in print history. William St. Clair even goes so far as to describe it as “the most decisive single event in shaping the reading of the romantic period” (St. Clair, 2007: 316). At the same time, it also illustrates the peculiar role played by copyright law and the Court of Chancery in the history of censorship in the eighteenth and nineteenth centuries. While it was indisputable that Southey was the author of Wat Tyler, the reason his injunction failed was that the play risked being declared criminal by a criminal court. What was essentially the denial of Southey’s copyright in Wat Tyler was obviously counterproductive, since it aided the dissemination of other seditious, obscene or blasphemous texts that could then be published by anyone; freed from the restraints of copyright, these texts could be published far more 46

DOI: 10.4324/9780429262067-6

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cheaply, profoundly shaping the nature of the reading public. As Ronan Deazley has said of such “criminal” materials, “de facto, they reside in the public domain” (Deazley, 2004: 116). In this chapter, I offer a brief overview of the role played by copyright law and the Court of Chancery as they pertain to books deemed seditious, blasphemous or more generally criminal in the eighteenth and nineteenth centuries. While this chapter may be benefcial to those from a legal, historical or a related humanities background, my approach is that of a literary scholar. What I offer are some refections on literature and, therefore, on literary study as it concerns both the law and the question of literary censorship. In this vein, my analysis is not solely literary-historical; I also offer tentative analogies between literature and the law, with a specifc focus on the intersection of questions of “precedent” and literary infuence. Following this appraisal of copyright law and literary precedent, this chapter concludes with two case studies, the poets Lord Byron and Percy Bysshe Shelley, who were both affected by the implications of the Southey v. Sherwood decision, accused of writing criminal works and whose literature was the subject of several Chancery cases.

Literature and the law The law, in its broadest sense, is widely known to have had a signifcant impact on the history of literature in English. Nevertheless, the specifc nature of this infuence is less understood, and it extends further than simple recognition of the high-profle court cases or works otherwise subject to censorship discussed elsewhere in this volume. At its most basic level, legal factors obviously affected what books were available. However, as the fallout from Southey v. Sherwood demonstrates, this was not always in the manner one might expect; due to certain criminal texts remaining in the public domain following an author’s loss of copyright, such books commonly became an author’s most popular work as they were cheaper and more widely available. Wat Tyler, for instance, a work Southey never intended to be published at all, sold approximately 60,000 copies in 1817 alone, dwarfng the sales of his legitimate publications. Southey did not of course receive any remuneration for these pirated Wat Tyler editions. In addition, aside from the apparent criminality within the work itself, the fact that a “high-brow” poet like Robert Southey found his work pirated by the likes of political radicals and subversives such as William Hone and Richard Carlile similarly risked his reputation and respectability. We can see, therefore, how the literary canon–and the accepted canon of works by a particular author–are affected by legal factors. Works deemed marginal may be brought to the fore for the reasons detailed above on the one hand, while, on the other, texts may only be available in expurgated versions if they are available at all. The eighteenth-century pornographic novel Fanny Hill (1748) by John Cleland for instance–subject to several high-profle twentieth-century obscenity cases in the US as well as criminal proceedings in its own time– was not available in its original unexpurgated version until 1985 (Cleland, 1985).2 A notorious sodomy scene had generally been left out of editions of the text or had been deemed to be an addition by one of the novel’s many illegitimate publishers. Also, the epic poem Laon and Cyntha (1817) by the Romantic poet Percy Bysshe Shelley was suppressed immediately after publication due to its apparent blasphemy; the revised poem known as The Revolt of Islam (1818) was taken as the authorised version–partly due to Shelley’s posthumous editor Mary Shelley for nearly 200 years.3 Although this poem was itself not subject to criminal or legal proceedings, the poet and his publishers had learned to tread carefully from previous experience. 47

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That the operation of the law has shaped the literary canon–meaning both in terms of the books read by contemporary readers and what is included on university syllabuses today–is best illustrated by the notorious case concerning D.H. Lawrence’s novel Lady Chatterley’s Lover (1928). Known as R. v. Penguin Books (1960), this was an attempted prosecution of the publisher Penguin following their publication of an unexpurgated version of Lawrence’s novel that had been suppressed since its initial publication.4 Penguin’s successful defence was reliant on the testimony of leading literary critics and scholars attesting to the novel’s literary and artistic merit, which meant that Lady Chatterley’s Lover was found to be a serious, literary novel. The case therefore helped to cement Lawrence’s status as one of the great canonical writers of the twentieth century; after all, he had had the advantage of a jury trial to legally determine his artistry and importance. It is ironic in this light that Lady Chatterley’s Lover is not always considered to be one of his best works.5

Legal precedent and literary infuence As part of the proceedings of R. v. Penguin Books, Penguin’s lawyers had requested that they be allowed to reference other literary works as part of their defence. The aim was to compare Lawrence’s novel favourably with well-established, canonical predecessors. While this request was denied, it nevertheless reveals a striking intersection between legal precedent and questions of literary infuence or allusion. This is similarly evident in earlier cases from the eighteenth and nineteenth centuries. The law in the Anglophone world is largely determined by a combination of Statute Law– which is established through legislation passed in parliament–and Common Law, where legally binding rulings in courts of law set “precedent” for future cases. In matters of censorship of books deemed to be criminal, a particular piece of legislation may determine precisely what should be outlawed. For instance, in Britain it was technically illegal to deny the divinity of Christ in print until as late as 1813 and the passing of the “Doctrine of the Trinity Act”. The crime of Obscene Libel, on the other hand, became an offence after the trial of the publisher Edmund Curll, in Rex v. Curl (sic) (1727), set an important precedent. While Southey v. Sherwood was a Chancery rather than a criminal case, it nevertheless helped to determine actual precedent concerning an author’s copyright in criminal texts. It is signifcant that during the trial Southey’s lawyers tried to downplay the criminality of Wat Tyler by referencing other works. As reported in The Observer, one of Southey’s lawyers rejected certain analogies drawn in the trial while nevertheless drawing a few of his own: asked whether there was any analogy between the present times and the times of Richard the Second, when the mass of the people were in complete vassalage; the state of society was now quite the reverse. Surely there was nothing reprehensible in the author of a poem, the scene of which was laid at a remote period, putting sentiments and expressions into the minds and mouths of the actors, which were congenial to their respective characters at the time; no one ever thought of censuring Shakespeare for the profigate wit of Falstaff, or Dr. Brown for the impieties of Barbarossa. (Anonymous, 1817) Arguing that there was no connection between the play’s fourteenth-century setting and the 1790s when the play was written is a little disingenuous; while it is of course true that the people were not in a state of “vassalage” at the end of the eighteenth century, the two periods 48

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nevertheless shared, for instance, high taxation intended to pay for a war with France. Note that Tyler’s rebellion in the play is sparked only reluctantly after he is forced to kill a tax collector who threatens the honour of his wife and daughter. The other arguments reported in the above quotation, however, are important ones made consistently in defence of texts accused of criminality in the period. The frst of these is that, because Wat Tyler is a play or dramatic poem, it is not unreasonable or indeed criminal for the work to contain seditious characters saying seditious things: the author does not necessarily condone the sentiments uttered.6 Southey’s lawyer illustrates his point by drawing analogies to characters from other texts, in an attempt to invoke literary precedent. The frst of these, Shakespeare’s Falstaff, is a recurring and highly popular comic character appearing in Henry IV Part 1, Part 2 and The Merry Wives of Windsor. The second, Barbarossa, is a little more obscure from a twenty-frst-century perspective, and refers to the eponymous character of Rev. Dr. John Brown’s Barbarossa: A Tragedy (1755), a play that had been popular in the 1770s. It would be unreasonable, Southey’s lawyer claims, to argue that Shakespeare or Brown are responsible for the behaviour of their fctional characters, with the implication being that Southey should not be held responsible for his. It is important, too, which authors are invoked; while the Rev. Dr. John Brown is not exactly a giant fgure in the literary canon today, the opposite is true of Shakespeare. By drawing this connection –to one of the greatest authors of all–is to seek to imbue Southey’s authorial endeavours with literary authority. Importantly, these invocations of literary precedents in a legal case concerned texts that were themselves not subject to the sort of legal diffculty that Wat Tyler found itself in; in fact, for Southey’s lawyers’ purposes, it was better that they were not. In this way, what I have termed “literary precedent” is treated as not just analogous to legal precedent but, in certain contexts, coexistent.

Copyright and censorship in the Court of Chancery, 1710–1802 While allusions to other literary texts ultimately did not help the cause, the reason his lawyers were forced to defend Southey’s play against charges of sedition in the frst place was because of a legal precedent invoked by the other side. Although the infuence of Southey v. Sherwood is the more important, a case known as Walcot v. Walker of 1802 was in fact the frst to deny copyright on the basis of a text’s potential criminality. The connection between the hearings was easy to draw since the presiding judge in Southey v. Sherwood, Lord Chancellor Eldon, was familiar with the earlier case and had even written remarks on it (Vesey, 1827: 1–2). Walcot v. Walker concerned the satirist John Walcot, who wrote under the pseudonym Peter Pindar, attempting to restrain the unauthorised publication of his work. The nature of the work in question, as with Southey’s 15 years later, was the reason for the injunction’s refusal. As mentioned, such a decision by Chancery appears counterintuitive. To understand why this makes legal sense, however, is to recognise, frstly, that this is a question of jurisdiction; while Chancery made decisions based on “suspected” criminality of a text, it was never defnitively ruled on, with such judgement reserved for a criminal court. It was recognised that this unfortunately resulted in increased dissemination of allegedly criminal texts in the meantime – or the loss of copyright for authors who may later be found to be innocent – but this was adjudged to be beyond the court’s control. Secondly, such decisions also stem from prevailing attitudes towards copyright law from its inception in the early eighteenth century. A brief overview of eighteenth-century copyright helps to establish the role played by supposedly “criminal” texts in shaping copyright law and vice versa. 49

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The world’s frst ever copyright statute, commonly known as “The Statute of Anne”, was passed in 1709 and became law in 1710. At this stage, copyright –in theory at least–was applied to all texts, regardless of their quality or, indeed, presumed legality. This was the case largely for pragmatic reasons; prepublication censorship had been abolished in 1695, although plays still required approval from the licenser before they were performed, remaining the situation throughout the eighteenth century and even until the mid-twentieth. This nascent copyright law, as evidenced by the statute’s full title, considered copyright as something “awarded” to writers for their labour and contribution to knowledge.7 This is important to note; to imagine copyright as a reward for work produced has implications when this concerns blasphemous, seditious or obscene texts. Such a conception essentially sees writers being “rewarded” for criminal works; not an ideal situation in which the authorities should fnd themselves. It is this understanding of copyright that partly helps to explain the thinking behind decisions such as Walcot v. Walker and Southey v. Sherwood; potential criminality is no longer to be seen to be rewarded. The frst test of copyright law in court came in a case known as Burnet v. Chetwood (1721). This involved the unauthorised posthumous translation and subsequent publication of Thomas Burnet’s work Archaeologiae Philosophicae sive Doctrina de Rerum Originibus (1692) from Latin into English; the English title was The Ancient Doctrine Concerning the Origin of Things. Burnet’s surviving brother had hoped to restrain further publication and, ultimately, the case was found in his favour. The presiding judge Lord Chancellor Macclesfeld’s justifcation for his decision is signifcant; it was reported of Macclesfeld that this being a book which to his knowledge, (having read it in his study,) contained strange notions intended by the author to be concealed from the vulgar in the Latin language, in which language it could not do much hurt, the learned being better able to judge of it, he thought it proper to grant an Injunction to the printing and publishing it in English. (Merivale, 1825: 334) While the primary motivation for Macclesfeld’s decision was a simple matter of copyright, it is nevertheless signifcant that he recognised the positive implications of his decision in reducing the text’s dissemination. Macclesfeld’s decision, then, was censorious. Burnet’s work’s “strange notions” included disputing the literalness of key Christian doctrine; while “the learned” who understood Latin would be able to judge it with suffcient disinterest, exposing these notions to the “vulgar” who did not understand it could “do much hurt”. Granting an injunction against the English translation, therefore, was justifed. While the issue largely lies outside the bounds of this chapter, it is notable that the target audience of a particular work was often deemed of greater signifcance by censorious authorities than the content of the work itself. Cheaper and more “accessible” works were deemed a much greater threat and clamped down upon accordingly. Nevertheless, what Burnet v. Chetwood helps to show is that the Court of Chancery plays a key role in the censorship of literary texts throughout the eighteenth and nineteenth centuries, from the very inception of copyright. The fact that this moves from decisions that ultimately restrain dissemination to inadvertently aiding it by the early nineteenth century still does not detract from the signifcance of Chancery’s role. 50

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John Milton and the legacy of Southey v. Sherwood: Lord Byron and Percy Bysshe Shelley This chapter’s fnal third turns towards a consideration of two major canonical writers impacted by the Southey v. Sherwood decision. The Romantic poets Lord Byron and Percy Bysshe Shelley were younger contemporaries of Southey. Not only were they both Southey’s major rivals and antagonists, particularly Byron, they have both been more favourably treated by the judgement of literary history and remain key members of the “Big Six” Romantic poets alongside William Blake, William Wordsworth, Samuel Taylor Coleridge and John Keats. Nevertheless, not only were the pair infuenced by Southey’s poetry, but the precedent set by his Chancery case also profoundly affected their publications in the early 1820s. While Shakespeare was the major writer cited in Southey v. Sherwood, this section considers the infuence and precedent of John Milton. Milton was not only one of the most signifcant and canonical poets in English, but he was also a passionate defender of liberty and the freedom of the press in his own time, commonly invoked both in the nineteenth century and in ours. As Lucy Newlyn puts it, the extent of Milton’s infuence on the Romantic poets “cannot be overstated, nor has it yet been exhausted as a worthwhile subject of study” (Newlyn, 2001: 2). The signifcance of Milton’s poetic status and literary power as evidenced by poems such as Paradise Lost (1667) is certainly a major factor, but the position of Milton as a republican and great defender of liberty was a major area of engagement for writers of a certain political persuasion. Milton’s earlier speech8 Areopagitica, for instance, published as a prose polemical in 1644 during the English Civil War, is commonly regarded as one of the most signifcant defences of the principles of free expression and the liberty of the press in English. It is important, nevertheless, to remark here that Areopagitica builds its case through textual and literary allusion; while it is not a legal text, its authority is nonetheless enhanced by its citing of the intellectual and theological precedent of the Bible and Ancient Greek philosophy. The very title, for instance, is an allusion to a work produced by the Athenian orator Isocrates as well as St. Paul’s defence of his faith in front of the Areopagus in Acts 17. It is noteworthy, then, that after citing precedent, Milton himself later became precedent, the very fgure cited as a great champion of freedom of expression and in defence of those accused of producing criminal works.

Lord Byron in Chancery: Murray v. Benbow & Murray v. Dugdale The infuence of Milton on Byron’s writing is clear, despite his denials. The frst canto of Byron’s great mock-epic poem Don Juan (1819–1823) includes a set of “poetical commandments” instructing his readers to “believe in Milton, Dryden, Pope” and to not “set up Wordsworth, Coleridge, Southey” (I. ll. 1633, 1634) (Lord Byron, 2004: 97)9 Byron’s antipathy towards Southey was not just poetical but political; Don Juan has a long, ironic “Dedication” to the poet that, interestingly, includes a passage that contrasts him with Milton: 10 If, fallen in evil days on evil tongues, Milton appeal’d to the Avenger, Time, If Time, the Avenger, execrates his wrongs, And makes the word “Miltonic” mean “sublime,” 51

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He deign’d not to belie his soul in songs, Nor turn his very talent to a crime; He did not loathe the Sire to laud the Son, But clos’d the tyrant-hater he begun. 11 Think’st thou, could he—the blind Old Man—arise Like Samuel from the grave, to freeze once more The blood of monarchs with his prophecies Or be alive again—again all hoar With time and trials, and those helpless eyes, And heartless daughters—worn—and pale—and poor; Would he adore a sultan? he obey The intellectual eunuch Castlereagh? (‘Dedication’, ll. 73–88) Lord Castlereagh was the hated Foreign Secretary and Leader of the House of Commons under the repressive government of the Earl of Liverpool. The poet’s remarks here imagine Milton in the early nineteenth century and contrasts his principles with the apostate Robert Southey’s; the once radical, now reactionary, Southey, it is implied, “obey(s)/ The intellectual eunuch Castlereagh”, a political allegiance Milton would never have countenanced. Byron invokes Milton when the precedent set by Southey v. Sherwood posed problems for his dramatic poem, or, closet drama Cain: A Mystery (1821). Byron’s play is a reimagining of the story of Cain and Abel from Genesis, with the character of Lucifer tempting Cain with the gift of knowledge and, by doing so, catalyses the murder of Abel. The play begins after the fall of Adam and Eve, explaining why it is commonly read in dialogue with, or as sequel to, Milton’s Paradise Lost, with Byron even disingenuously distancing himself from the poem in Cain’s preface (Lord Byron, 1991: 228). Due to the play’s scepticism and apparent criticism of Christian doctrine, Byron faced accusations of blasphemy. Byron wrote of these accusations in a letter of February 1822 to his publisher John Murray: If “Cain” be blasphemous, then “Paradise Lost” is blasphemous; and the words … “Evil, be thou my good!” are from that very poem, from the mouth of Satan, – and is there anything more in that of Lucifer, in the Mystery? “Cain” is nothing more than a drama, not a piece of argument. I could not make Lucifer expound the Thirty-nine Articles, nor talk as the Divines do: that would never have suited his purpose. (Lord Byron, 1991: 215) Byron’s comments here are not dissimilar to the remarks made by Southey’s lawyer in Southey v. Sherwood. Byron invokes precedent by citing the example of a great literary predecessor arguing that the views deemed so objectionable are those in the mouth of Lucifer; it goes without saying that such a character would be hostile to Christianity. Whether this line of argument is enough to dissuade readers from believing the play to be hostile to Christianity is a matter of extensive critical debate. Cain soon became the subject of a Chancery case in 1822. The radical publisher and bookseller William Benbow produced an illegitimate version of the play and Byron’s pub52

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lisher, John Murray, brought an injunction to prevent further dissemination. Murray ultimately lost the case, known as Murray v. Benbow, because Cain was deemed potentially criminal; while the crime in this case was blasphemy rather than sedition, this was essentially the same reason for Southey’s loss fve years earlier. Importantly, not unlike Byron’s remarks above, Murray’s lawyers had drawn on literary precedent as part of their defence, invoking Paradise Lost comparatively with Cain. However, Lord Chancellor Eldon rejected this, remarking that, unlike Cain, the aim of Paradise Lost was “to promote the cause of Christianity” and “the reverence of our religion” (Senior, 1822: 129). Eldon also expressed doubts concerning the plaintiff’s suggestion that Cain’s treatment of “the fall and the atonement” was “as innocent as that of the other with which you have compared it” (p. 129). It appears then that, contrary to Byron’s remarks, while Cain was blasphemous, Paradise Lost was (legally) not. Byron also faced accusations of blasphemy for the frst fve cantos of Don Juan and had even responded to these in his preface to cantos VI, VII and VIII of the poem in 1823 (pp. 261–263). It is unsurprising, then, that Don Juan also found itself subject to a Chancery hearing. Known as Murray v. Dugdale (1823), Murray again lost the case, temporarily losing copyright of six cantos of Don Juan due to its apparent immorality. Intriguingly, the defendant, the publisher and pornographer William Dugdale, had cannily instigated the proceedings himself. As St. Clair puts it, Dugdale was fully aware of “the implications of the Wat Tyler decision” and had engaged Chancery with the intent of producing his own edition freed from Murray’s copyright (p. 324). Byron was, after all, one of the most popular authors of his day and Dugdale was likely to reap signifcant fnancial benefts from his edition.

Percy Bysshe Shelley in Chancery: Shelley v. Westbrooke and Queen Mab While hearings in Chancery directly concerned with copyright of a single text played a signifcant role in shaping their readership, a different sort of Chancery case, such as the one involving Byron’s friend and contemporary Percy Shelley, was often just as important. In 1817, following the suicide of Shelley’s frst wife Harriet Westbrook the previous December, Shelley fought to retain custody of his children from Harriet’s family. The case, Shelley v. Westbrooke (sic), was heard in Chancery since children were essentially considered the property of their parents. Despite it being quite unusual for fathers to lose custody in such instances, Shelley ultimately lost the case. Shelley’s republican, atheistic and other “immoral” principles meant that he was seen as a corrupting infuence on his children. Importantly, the Westbrook’s lawyers had cited Shelley’s controversial poem Queen Mab (1813), that had been dedicated to Harriet, as evidence. Shelley’s poem, subtitled A Philosophical Poem, with Notes, not only appeared to advocate for such principles within the poem itself, but expanded upon them at length in a series of extensive prose notes. Not only did one note advocate for free love, others were repurposed passages from Shelley’s earlier pamphlet The Necessity of Atheism (1811) that had precipitated his expulsion from the University of Oxford. The fact that Shelley v. Westbrooke was almost contemporaneous with Southey v. Sherwood is important. While Shelley’s case did not directly concern the copyright of Queen Mab, it was nevertheless taken to demonstrate its criminality and, therefore, the likelihood that Shelley would lose any Chancery cases relating to the poem in future. In fact, after the case, Shelley remained fearful that Queen Mab would result in criminal proceedings being brought against him, and this partly explains his caution with the revisions made to his similarly themed poem Laon and Cyntha later the same year. When Queen Mab was ultimately pirated in 1821 by 53

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William Clark, Shelley made some token attempts to pursue an injunction to suppress the publication but, as he says in a letter to his publisher Charles Ollier, “after the precedent of Southey, there is little probability of an injunction being granted” (Shelley, 1964: 298). Shelley’s instincts concerning its criminality were correct; Clark was ultimately prosecuted for his publication of the poem and faced four months in prison. Nevertheless, numerous publishers followed Clark’s example and Queen Mab, like Southey’s Wat Tyler, became Shelley’s most widely read and disseminated work by quite some distance. Unlike Byron, Shelley was not exactly a bestseller. At the time of his death the following year in 1822, Queen Mab, initially completed when he was just 20 years old, was the work with which he was most associated. The popularity of the pirated Queen Mab editions in the 1820s ultimately infuenced Shelley’s widow, Mary Shelley, to include the work prominently in her editions of The Poetical Works of Percy Bysshe Shelley (1839; 1840); the frst edition of 1839 included an expurgated version of Queen Mab while the edition of 1840 appeared with redacted passages restored.

Conclusion This chapter has summarised several important Chancery cases in the eighteenth and nineteenth centuries and in doing so has demonstrated the close relationship between Chancery, copyright law and censorship in the period. While it is inevitable that copyright law would play some role in shaping the literary canon, it is nevertheless striking to observe its intersection with texts deemed potentially criminal. The fact that such texts were those denied the protection of copyright profoundly infuenced the nature of the reading public and the books that were purchased and read. These cases also illustrate how legal responses to criminal publications often backfred, having outcomes quite the reverse of what had been intended. I would argue, then, that to thoroughly investigate the history of censorship in any given period necessitates looking beyond straightforward criminal law and into areas where censorship or restraint on free expression does not immediately appear to be at stake. This chapter has also drawn tentative analogies between literature and the law. I have argued that citing legal precedent is, at the very least, analogous to a writer citing their literary forebears. That the names of Shakespeare and Milton fnd their way into actual trials at court in the period bears this out. The successful allusion to a great author in a writer’s corpus imbues it with a type of literary authority, not unlike the legal authority gained in court through the successful citation of precedent. In the case of Byron’s invocation of Milton, and Southey’s of Shakespeare, these great authors function not only as both legal and literary precedents but as sources of moral authority used to defend against a censorious establishment and to justify artistic freedom.

Notes 1 For an extended treatment of Southey’s case see Hoadley (1941: 81–96). 2 Peter Wagner’s introduction to this edition offers a summary of the novel’s textual variants and a justifcation as to why this version is deemed complete. Memoirs v. Massachusetts (1966) was a highprofle US case involving the novel, and it clarifed the important earlier Supreme Court case on obscenity known as Roth v. United States (1957). 3 For a discussion of the revisions made between the two poems see Whickman (2018). 4 For a detailed discussion of the trial, as well as some of the issues concerning obscenity law at the time, see Hilliard (2013: 653–678).

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Literary infuence and legal precedent 5 For a consideration of Lady Chatterley’s Lover’s canonical status, see Brown, (2014: 56–74). 6 Although In the case of Wat Tyler, our sympathies clearly lie with the rebels. 7 “An Act for the Encouragement of Learning by vesting the Copies of printed Books in the Authors of Purchasers of such Copies, during the Times therein mentioned”. 8 See also chapters 2, 9 and 33 in this volume. 9 Further references are to this edition.

References Anonymous. (1817) “Court of Chancery.–Tuesday, March 18”, The Observer, 23rd March. Brown, R. (2014) “D. H. Lawrence’s Lady Chatterley’s Lover in the New Century: Literary Canon and Bodily Episteme”, in Reassessing the Twentieth-Century Canon from Joseph Conrad to Zadie Smith, edited by N. Allen and D. Simmons (eds.) (London: Palgrave MacMillan), pp. 56–74. Byron, G. G. (1991) The Complete Poetical Works, Vol. 6 edited by J. McGann (Oxford: Clarendon Press). Byron, G. G. (2004) Don Juan edited by T. G. Steffan, E. Steffan and W. W. Pratt (London: Penguin). Cleland, J. (1985) Fanny Hill, or, Memoirs of a Woman of Pleasure (London: Penguin Books). Deazley, R. (2004) On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695–1775) (Oxford: Hart Publishing). Hilliard, C. (2013) “‘Is It a Book That You Would Even Wish Your Wife or Your Servants to Read?’ Obscenity Law and the Politics of Reading in Modern England”, The American Historical Review June 118(3): 653–678. Hoadley, T. F. (1941) “The Controversy Over Southey’s Wat Tyler”, Studies in Philology 38(1): 81–96. Merivale, J. H, (1825) Reports of Cases Argued and Determined in the High Court of Chancery: Commencing the Michaelmas Term, 1815 [to the End of the Michaelmas Term, 1817], Vol. 2 (New York: G. Lamson). Newlyn, L. (2001) Paradise Lost and the Romantic Reader (Oxford: Oxford University Press). Senior, N. W. (1822) “Cases of Walcot v. Walker, Southey v. Sherwood, Murray v. Benbow and Lawrence v. Smith”, Quarterly Review April, 27(53): 123–138. Shelley, P. B. (1964) The Letters of Percy Bysshe Shelley, Vol. 2 edited by F. L. Jones (Oxford: Clarendon Press). Southey, R. (1816) “Art. XI. 1. An Inquiry into the Causes of the General Poverty and Dependance of Mankind… [‘Parliamentary Reform’]”, Quarterly Review October 16(31): 225–278. St. Clair, W. (2007) The Reading Nation in the Romantic Period (Cambridge: Cambridge University Press). Vesey F. (ed.). (1827) Reports of Cases Argued and Determined in the High Court of Chancery: From the Year 1789 to 1817, Vol. VII. (London: Samuel Brooke, Paternoster Row). Whickman, P. (2018) “Laon and Cythna and The Revolt of Islam: Revisions as Transition”, Keats-Shelley Review 32(2): 102–112.

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5 THE LIMITS OF MILL’S CASE FOR FREE DISCUSSION Kristoffer Ahlstrom-Vij

Introduction John Stuart Mill famously argued that free discussion can be defended with reference to how it promotes knowledge. Mill’s argument is that any opinion we might consider silencing will be either entirely true, entirely false or partly true, and in any of these three scenarios it would be detrimental to our pursuit of knowledge to suppress it. However, Mill’s argument works only under the optimistic assumption that, as he puts it, “[w]rong opinions and practices gradually yield to fact and argument”. Can that assumption be defended? One defence appeals to the so-called “marketplace of ideas”, according to which truth stands the best chance of winning out when speech is completely unregulated, in an analogy with nineteenth-century laissez-faire economic doctrines. As argued by Alvin Goldman (1999), however, these supposed benefts for discussion neither follow from economic theory nor do they receive any support from the actual practice of markets. Another defence appeals to forms of deliberative democracy, conducted through a dynamic and inclusive process of reason-giving. However, results from social psychology suggest that such deliberation will in practice simply reinforce whatever happens to be the majority view prior to deliberation – irrespective of whether the majority is correct. A third and fnal defence attempts to save Mill’s argument by noting that, when Mill talks about “discussion”, he is concerned with a small subset of speech, described by Piers Turner (2013) as “joint, reasoned engagement on some (usually public) matter, governed by norms of truth, fair play, and sincere attention to the general good”. Under these conditions, Mill’s optimistic assumption about the truth winning out might hold, but at the cost of radically restricting the applicability of his argument: most speech that people engage in – and that free-speech theorists have wanted to protect – simply would not qualify as “discussion”, in Mill’s sense. For these reasons, anyone looking for a general defence of freedom of speech or expression – as opposed, perhaps, to an inspiring ideal of reasoned communication – should look beyond Mill’s defence of free discussion.

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The limits of Mill’s case for free discussion

Mill’s argument At the very outset of what Christopher Macleod recently has referred to as “the best-known defence of free speech in the philosophical canon” (2021: 1), John Stuart Mill boldly and famously proclaims in the second chapter of On Liberty that: If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justifed in silencing that one person, than he, if he had the power, would be justifed in silencing mankind. (2008: 21) True to his underlying philosophy, Mill’s argument for this claim is a consequentialist one. According to Mill, any opinion we might consider silencing will be either entirely true, entirely false or partly true, and in any of these three scenarios suppressing it would have detrimental consequences for our pursuit of knowledge – in turn, the good required for learning how to exhibit individuality, the primary ingredient of well-being. Mill sums up his argument as follows: First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. (Ibid.: 59) Let us consider each of the three scenarios in some detail, starting with the frst one: that the opinion we are considering silencing is entirely true. We, as the prospective silencers, would of course consider it false. Mill’s point is that, even if we do, we still need to acknowledge that we might be wrong, and when we look to silence something on the grounds that it is false, that is what we fail to do. As he puts it: “All silencing of discussion is an assumption of infallibility” (Ibid.: 22). This might be considered too strong a claim. Why an assumption of infallibility? As David Brink notes: “The censor need not assume that he is infallible. He can recognize that he might be mistaken, but insist that he must act on the best available evidence about what is true” (2008: 45). Mill’s response is that the way – indeed, the only way – to achieve such evidence is through free discussion: Complete liberty of contradicting and disproving our opinion, is the very condition which justifes us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right. (Mill 2008: 24)

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In other words, the only way to attain good reason to believe that one is correct is to form one’s beliefs in the context of complete liberty of discussion. Engaging in censorship would thereby rob people of the very epistemic resources to which they would need to appeal in attaining it. As such, Mill sees a tight connection between free discussion and the conditions under which we can rightly be confdent in our beliefs. Macleod comments: [H]owever much supporting evidence any person may possess for a given belief, others may possess countervailing evidence which, on balance, outweighs it. If we are to have confdence in our beliefs, it must be on the basis that we have not neglected any evidence possessed by others. As such, a society committed to truth must be prepared to hear evidence openly—i.e., to be governed by norms of free discussion. (2021: 4) There are two issues with what Mill has to say here. First, the tight connection he sees between discussion and justifcation is arguably too tight. Note that Mill is saying that “on no other terms” can we come to have any “rational assurance of being right”. Even if we think that free discussion is benefcial, we might take issue with such a strong formulation. It suggests that free discussion is necessary for justifying beliefs, which cannot be right. For one thing, there are surely cases where we form justifed beliefs in the absence of free discussion, such as through perception, introspection or refection. For another, there are also cases where we form justifed beliefs in contexts of less than fully free discussion. Consider, for example, a highly regimented discussion with strict rules for participating and contributing that, as it happens, signifcantly increases the chances of people forming a large amount and high proportion of true beliefs. It is not completely far-fetched to think that some scientifc norms of discussion or legal frameworks (for example, those regarding rules of evidence and their admissibility in court) are like this. Even someone who might call into question whether such regimented discussions are the best or most effcient way of achieving justifcation, all things considered, will have to concede that they can offer justifcation for the discussants – in which case free discussion cannot be necessary for justifying belief. Second, setting that matter to one side, let us instead focus on what it is that Mill thinks that free discussion gets us, and on whether it is the only manner in which we may realise the relevant goods. This brings us to what I will refer to as the fundamental assumption (FA) underlying Mill’s argument in each of the three scenarios, as we shall see, namely that “[w] rong opinions and practices gradually yield to fact and argument” (2008: 25). If (FA) holds, it is fairly easy to see Mill’s argument fowing smoothly: if wrong opinions over time can be trusted to wilt away in the face of fact and argument, then we can always trust that, with a degree of patience, the truth will win out. So, whether free discussion is necessary for justifying our beliefs, it is not diffcult to see why Mill would think that free discussion will – with time, at least – be suffcient for justifcation, if we can assume (FA). But why make that assumption? Do truths always win out against falsities in free discussions? Convincing or popular falsities as well as unconvincing or inconvenient truths suggest not. As such, Mill’s assumption seems far too optimistic. Indeed, as Roger Crisp notes: “Mill’s faith in human rationality is excessive. He underrates the human capacity to believe and act on the patently absurd” (1997: 194–95). But was Mill really that naïve? Alternatively, perhaps he had in mind a far more circumscribed situation or activity when he talks about “free discussion”, as opposed to the wide-ranging domain we typically have in mind today when talking about “free speech”. We will return to this possibility in a later section 58

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Rather than getting ahead of ourselves, however, let us turn to Mill’s second scenario: The opinion we are considering silencing is partially true. As Mill writes: “The conficting doctrines, instead of being one true and the other false, share the truth between them; and the nonconforming opinion is needed to supply the remainder of the truth” (2008: 52). But why expect that this remainder will be thus supplied through free discussion in particular? Truth … is so much a question of the reconciling and combining of opposites, that very few have minds suffciently capacious and impartial to make the adjustment with an approach to correctness, and it has to be made by the rough process of a struggle between combatants fghting under hostile banners. (Ibid.: 54) Given this, unless it is the case the relevant beliefs are “expressed with equal freedom, and enforced and defended with equal talent and energy, there is no chance of both elements obtaining their due” (ibid.). However, for the ensuing combat to yield the result that Mill has in mind, we again need to appeal to (FA), namely the fundamental assumption that, through free discussion, “[w]rong opinions and practices gradually yield to fact and argument” (ibid.: 25). Only then can we assume that it won’t be, rather, the false beliefs that conquer the true ones, whether through sheer numbers or brute rhetorical strength. But, again, this assumption remains too optimistic. Consider, then, the third and fnal scenario: the opinion we are considering silencing is completely false. This would have to be the most challenging scenario for Mill, which is perhaps why this is also where we fnd his most interesting response. According to Mill: “If the cultivation of understanding consists in one thing more than in another, it is surely in learning the grounds of one’s own opinions” (1859: 41). That is why we should not suppress even opinions that are completely false: We will miss out on the understanding – that is, the insight into the grounds of our beliefs – that follows from discussion, and end up holding the opinion concerned “as a dead dogma, not a living truth” (ibid.: 40). About the person whose views have not to be challenged in this manner, Mill states: Their conclusion may be true, but it might be false for anything they know: they have never thrown themselves into the mental position of those who think differently, and considered what such persons may have to say; and consequently they do not, in any proper sense of the word, know the doctrine which they themselves profess. (Ibid.: 42–3) Of course, we will still want to know why free discussion in particular will provide the relevant kind of understanding. There are two possibilities to consider here: on the one hand, someone who believes truly coming to understand their grounds for belief, and retaining it; on the other hand, someone who believes truly being misled by someone who believes falsely, and surrendering their true belief. Mill seems to ignore the second possibility. Why would one do that? Yet again, we come back to (FA). Only on that assumption can we trust that free discussion will lead us towards understanding rather than have us lose out on knowledge already in our possession – and, as things stand, that assumption remains too optimistic to be warranted. 59

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The marketplace of ideas We have seen that Mill’s defence of free discussion rests on an assumption about false beliefs yielding to true ones over time that seems too optimistic, and also that we do not fnd anything in Mill’s own defence of such discussion to justify that optimism. We will now consider two possible defences of that assumption, starting with an appeal to the so-called “marketplace of ideas”. The assumption behind a “marketplace of ideas” is, as Alvin Goldman puts it, that “the truth has the best chance to emerge, or other values have the best chance of being achieved, if ideas are allowed to compete freely in the open market or marketplace” (1999: 192). Justice Oliver Wendell Holmes gave voice to this idea in 1919 when suggesting in his famous dissenting verdict in Abrams v. United States that “the best test of truth is the power of the thought to get itself accepted in the competition of the market”. Will this idea deliver on Mill’s assumptions? Goldman helpfully distinguishes between three different readings of the idea of a “marketplace of ideas”. On one reading, the benefts of free discussion would be a straightforward consequence of a process akin to the workings of the market in classical economics . Here we would assume that speakers are “producers”, that speech is a “good” (a product) and that hearers are “consumers”. According to standard economic theory, under perfect competition the market will then effciently allocate goods in accordance with consumer preferences. However, two problems immediately present themselves in this reading. First, people might in many situations not prefer truth over other “goods” (entertainment, partisanship, convenience and so on). When that is the case, the market will not allocate truth effciently. Second, perfect competition requires perfect information among consumers about the nature of the goods involved. But, of course, people do not have perfect information about the nature – that is, the truth or falsity – of the messages in question. Consequently, informed consumers are a prerequisite for, rather than a consequence of, effcient markets. In Goldman’s second reading, the beneft of free discussion is not a direct consequence of economic theory, but still true because, in practice, marketplaces (including marketplaces of ideas) work better without interventions. This reading, too, faces two challenges. The frst is presented by false but persuasive speech. For example, in a completely free market of ideas, there would be nothing to prevent misleading advertisements. The second challenge is presented by true but withheld information. For example, in a completely free and unregulated market of ideas, there might be strong (for example, commercial) incentives to withhold certain types of information, including risks of harm. As a result, it is not clear that unregulated marketplaces of ideas, any more than unregulated markets in general, can in practice be relied upon to reliably generate the relevant epistemic goods in practice. In Goldman’s third and fnal reading, the marketplace of ideas is simply a metaphor, not a reference to economic theory or to any actual markets. Here, the idea is simply that more speech is better in itself, which is why we need to encourage free discussion by everyone. The problem as far as our discussion is concerned, of course, is that this just serves as a restatement of Mill’s foundational assumption, not a defence of it. And as Goldman notes: “Without an assurance of ‘quality’ of performance by both speakers and hearers, mere quantity of argumentation cannot be relied upon to bring the community closer to the promised land of greater knowledge” (1999: 211). 60

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Deliberative democracy Another way to try to defend Mill’s fundamental yet seemingly overly optimistic assumption, (FA), is to embed it within the tradition of a deliberative democracy, conducted through a dynamic and inclusive process of reason-giving. Indeed, Amy Gutmann and Dennis Thompson (2004: 9) suggest that Mill is the “most prominent nineteenth-century advocate of ‘government by discussion’ [and] is rightly considered one of the sources of deliberative democracy”. The idea, as far as our investigation is concerned, would then be that the type of benefts that Mill seems to think come out of free discussion can be realised if such discussion takes the form of democratic deliberation. Why think that? As Gutmann and Thompson suggest, “when [people] deliberate, they can expand their knowledge” (2004: 12) and by “deliberating with their fellow citizens, decision-makers can arrive at better, more adequately justifed decisions” (ibid.: 23). Along similar lines, Seyla Benhabib claims that “processes of public deliberation have a claim to rationality because they increase and make available necessary information…and because they lead to the formation of conclusions that can be challenged publicly for good reasons” (1996: 87). Iris Marion Young , also a deliberative democrat, suggests that: The structure and norms of ideal deliberative democracy … provide the epistemic conditions for the collective knowledge of which proposals are most likely in fact to promote results that are wise and just … Their collective critical wisdom thus enables them to reach a judgment that is not only normatively right in principle, but also empirically and theoretically sound. (2000: 30–31) So, perhaps the missing piece in our reading of Mill above was that we failed to locate him within a broadly deliberative-democratic tradition. The question remains, however, why we should expect that people – including citizens – getting together to deliberate should be expected to deliver the relevant epistemic goods. In particular, why not think that all of the issues identifed in relation to Mill’s original argument, and the arguments explored in relation to a “marketplace of ideas” in the previous section, apply equally to democratic deliberations? Gutmann and Thompson, for example, are surely right that people can expand their knowledge and that they can arrive at more justifed decisions by deliberating with one another, but “can” does not imply “will”, and the variety of biases, power asymmetries and so forth that will often be at work in deliberations offer signifcant obstacles to overcome. Gutmann and Thompson are not blind to this fact, of course. In response, they point to what they see as the self-correcting feature of deliberative democracy: “The critics ignore one of the most effective antidotes to both the misuse of deliberation and the neglect of undesirable forms of power politics – the use of deliberation itself to publicly expose the unjustifed exercise of power” (2004: 46). In his frst inaugural address, President Bill Clinton suggested that “there is nothing wrong with America that cannot be cured by what is right with America”. Along similar lines, Gutmann and Thompson seem to be suggesting that there is nothing bad about deliberation that cannot be cured by what is good about (more) deliberation. However, if we look at what we know about deliberation from social psychology, this is arguably too optimistic. To see why, consider what we would want social deliberation to do. Since politics is compli61

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cated, at most a minority will tend to be informed on any given matter. Indeed, the fact that most of us are ignorant on politically relevant matters is well established (see, for example, Delli Carpini and Keeter, 1996), and, according to Jeffrey Friedman, “one of the strongest fndings that have been produced by any social science” (1998: 397). So, we would want deliberation to help the minority educate the majority. But who tends to win out in social deliberation: the (informed) minority or the (uninformed) majority? There are two possible scenarios here, neither of which is reassuring to the defender of deliberative democracy. In the frst scenario, the minority does not submit their information, due to the informational pressure of the majority position, or to social pressure associated with the risk of social sanctions against dissenters (Sunstein, 2006). In the second scenario, the minority does submit their information, possibly by fnding some way to overcome the aforementioned pressures. Still, the impact on the group judgment is, in that scenario, still most likely to be quite small due to the so-called common knowledge effect. Daniel Gigone and Reid Hastie sum up this effect as follows: “The infuence of a particular item of information [on the judgment of a group] is directly and positively related to the number of group members who have knowledge of that item before the group discussion and judgment” (1993: 960). In other words, what makes a difference in the context of social deliberation is not so much the quality of information as the quantity of people bringing a particular piece of information to the table, suggesting that deliberation will tend simply to reinforce the majority, not to educate or otherwise challenge it. This, of course, calls into question the idea that embedding Mill’s assumption about how wrong opinions gradually yield to fact and argument in a deliberative-democratic framework will thereby prove its validity. Just as an unregulated marketplace of ideas will not automatically produce outcomes favouring truths over falsities, so the mere act of bringing people together to deliberate will not necessarily guide them towards accuracy of opinion.1 Nor, to be fair, do deliberative democrats such as Gutmann and Thompson think that things are that simple; as they note: “Deliberation is more likely to succeed to the extent that the deliberators are well informed, have relatively equal resources, and take seriously their opponents’ views” (2004: 11). But this brings us straight back to a version of the point made above in relation to the marketplace of ideas: an informed citizenry, it seems, has turned out to be a prerequisite for, not a consequence of, a well-functioning deliberative democracy. Consequently, Mill’s assumption about the benefts of free discussion remains too optimistic.

Mill on “discussion” Where does this leave Mill’s defence of free discussion? In On Liberty, he makes the following admission: I acknowledge that the tendency of all opinions to become sectarian is not cured by the freest discussion, but is often heightened and exacerbated thereby; the truth which ought to have been, but was not seen, being rejected all the more violently because proclaimed by persons regarded as opponents. But it is not on the impassioned partisan, it is in on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect. (2008: 53) 62

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This suggests that, in talking about the benefts of “free discussion”, Mill might have in mind a far narrower type of activity than what we tend to think of today when concerning ourselves with the wide range of situations in which “free speech” presumably should be protected. It is not just, as Macleod (2021) has noted, about the content of “discussion”, and Mill is concerned only with statements that are truth-apt, which means that his argument does not concern, for example, jokes, poetry, painting or music – all of which many modern defenders of free speech and expression would certainly like to see protected. Furthermore, as argued by Piers Norris Turner in relation to the activity of discussion, “[n]ot all expression of opinion or conversation is discussion” (2013: 105) in Mill’s sense. Instead, in talking about “discussion”, Mill was concerned with a small subset of speech, described by Turner as “joint, reasoned engagement on some (usually public) matter, governed by norms of truth, fair play, and sincere attention to the general good” (ibid.: 105). Against the background of such a notion of “discussion”, Mill’s fundamental assumption, (FA), starts to look more plausible. When giving an account of the “real morality of public discussion” (2008: 61), for example, Mill describes the person who is “giving merited honour to everyone, whatever opinion he may hold, who has calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells or can be supposed to tell, in their favour” (ibid.). In a discussion among people acting in this manner, it is not diffcult to imagine that wrong opinions will in fact yield to the truth, if not immediately then certainly over time. At the same time, in this reading, Mill’s argument turns out to be far less applicable than many might have hoped, and in many cases assumed: again, most speech that people engage in – and that free-speech theorists have wanted to protect – simply would not qualify as “discussion”, in Mill’s sense. As such, Mill’s argument for free discussion is fully compatible with ample restrictions on speech or expression in the more general sense. Given his general pessimism that even a well-meaning government will manage to intervene in, and only in, the cases needed and without unintended consequences – a pessimism most famously underlying his argument against paternalism – Mill might of course believe that forms of expression other than those forming part of discussion are deserving of protection. But that is not part of his argument in On Liberty. The charge that Mill’s argument is inapplicable to most forms of speech would have been less serious, perhaps, had Mill offered more details on how free discussion, as he understands it, is supposed to improve the calibre of society more generally, and thus potentially turn more speech situations into opportunities for genuine discussion. But as noted by Daniel Halliday and Helen McCabe, “On Liberty contains no extended account of the mechanisms by which free expression actually brings about a discursive society, and exactly where in society the improvements might be most felt or most urgently needed” (2018: 73). As a result, John Gray’s observation that “Mill’s belief that liberty and representative government will have benefcent consequences he attributes to them looks more like a wager than any sort of scientifc prediction” (2008: xxviii) seems especially apt in the context of Mill’s case for free discussion. Where On Liberty leaves us is therefore not with a simple mechanism whereby, so long as freedom of speech is protected, the relevant goods will follow, but rather with an aspirational ideal of a discursive society, engaging in the type of constructive debate that forms the foundation for choices about “experiments in living”. It speaks to the fact that such a society places non-trivial demands on its citizenry, or perhaps more appropriately, on that society’s provisions for education, which presumably would be the primary point at which 63

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people would develop the type of intellectual character required for engaging in true discussion. Mill partly addressed this point in his Inaugural Address to the University of St. Andrews: Unless an elementary knowledge of scientifc truths is diffused among the public, they never know what is certain and what is not, or who are entitled to speak with authority and who are not: and they either have no faith at all in the testimony of science, or are the ready dupes of charlatans and imposters. They alternate between ignorant distrust, and blind, often misplaced, confdence … We all require the ability to judge between the conficting opinions that are offered to us as vital truths. (1984: 233) Until such knowledge is diffused among the citizenry, however, discussion in Mill’s sense is likely to remain an activity restricted to the few. Consequently, anyone looking for a general defence of freedom of speech or expression – as opposed, perhaps, for an inspiring ideal of reasoned communication – should look beyond Mill’s defence of free discussion.

Note 1 For an extended treatment of the challenges faced by the deliberative democrat, given the social psychology of deliberation, see Ahlstrom-Vij (2012).

References Ahlstrom-Vij, K. (2012) “Why deliberative democracy is (still) untenable.” Public Affairs Quarterly, 26(3), 199–220. Benhabib, S. (1996) “Toward a deliberative model of democratic legitimacy.” In S. Benhabib (ed.), Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press) 67–94. Brink, D. (2008) “Mill’s liberal principles and freedom of expression.” In C. L. Ten (ed.), Mill’s On Liberty: A Critical Guide (Cambridge: Cambridge University Press) 40–61. Crisp, R. (1997) Mill on Utilitarianism (London: Routledge). Delli Carpini, M. X. and Keeter, S. (1996) What Americans Know About Politics and Why It Matters (New Haven, CT: Yale University Press). Friedman, J. (1998) “Introduction: Public ignorance and democratic theory.” Critical Review, 12(4), 397–411. Gigone, D. and Hastie, R. (1993) “The common knowledge effect: Information sharing and group judgment.” Journal of Personality and Social Psychology, 65(5), 959–74. Goldman, A. (1999) Knowledge in a Social World (Oxford: Oxford University Press). Gray, J. (2008) “Introduction.” In J. Gray (ed.), John Stuart Mill: On Liberty and Other Essays (Oxford: Oxford University Press) vii–xxx. Gutmann, A. and Thompson, D. (2004) Why Deliberative Democracy? (Princeton, NJ: Princeton University Press). Halliday, D. and McCabe, H. (2018) “John Stuart Mill on free speech.” In A. Coady and J. Chase (eds.), The Routledge Handbook of Applied Epistemology (London: Routledge) 71–87. Macleod, C. (2021) “Mill on the liberty of thought and discussion.” In A. Stone and F. Schauer (eds.), The Oxford Handbook of Freedom of Speech (Oxford: Oxford University Press). Mill, J. S. (1984 [1868]) “Inaugural address delivered to the University of St Andrews.” In J. S. Mill, Collected Works XXI (Toronto: University of Toronto Press). Mill, J. S. (2008 [1859]) “On liberty.” In J. Gray (ed.) John Stuart Mill: On Liberty and Other Essays (Oxford: Oxford University Press) vii–xxx, 5–128.

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The limits of Mill’s case for free discussion Sunstein, C. (2006) Infotopia: How Many Minds Produce Knowledge (New York: Oxford University Press). Turner, P. N. (2013) “Authority, progress, and the ‘assumption of infallibility’ in On Liberty.” Journal of the History of Philosophy, 51(1), 93–117. Young, I. M. (2000) Inclusion and Democracy (New York: Oxford University Press).

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6 AUTONOMY AND FREEDOM OF EXPRESSION Eric Barendt

Introduction The quest for truth and knowledge – the subject of Chapter Five – benefts society as a whole, enabling it to discover new truths and to make scientifc and political progress. Similarly, other chapters in this volume discuss the essential part freedom of expression plays in a participatory democracy. On these arguments the individual benefts stemming from freedom of expression are largely incidental to the freedom’s contribution to the population at large. In contrast, autonomy arguments for freedom of expression focus on its importance as an individual interest, though that interest may be linked with, even dependent on, social and cultural factors. This focus is particularly clear with regard to the arguments considered in the frst section of the chapter: Freedom of expression is intrinsic to a good life and necessary for the self-development of individuals. The emphasis on individual interests is also central to the case that autonomous citizens could not surrender to government the freedom to hear views which might infuence their beliefs and their decisions how to act on those beliefs (see Section three). The second difference is that, unlike the arguments from truth and democracy, autonomy arguments may be characterised as non-consequentialist. They do not take the form: Freedom of expression is important, perhaps guaranteed as a constitutional right, because as a consequence society will discover new truths or become a more lively democracy. Rather, the freedom is integral to what it is to be an independent individual. On this argument – sometimes termed “deontological” – short of an emergency, freedom of expression must be respected even when its exercise leads to bad consequences. The interest or right acts as a constraint on what governments may do or say to promote public security or order; an autonomous individual would not, for instance, give up freedom to consider terrorist propaganda, merely because it might persuade them to bomb an army base. Perhaps too much should not be made of this second difference, for it is sometimes hard to distinguish consequentialist and non-consequentialist arguments (Greenawalt, 1989: 127–29). Apparently non-consequentialist autonomy arguments can often be framed in consequentialist terms – individual moral independence leads to a richer and more diverse society (Alexander, 1998: 301–2; Greenawalt, 1989: 143–45; Raz, 1986, 1991). 66

DOI: 10.4324/9780429262067-8

Autonomy and freedom of expression

The central topic of this chapter is the argument for freedom of expression from personal autonomy, which at this stage may be loosely defned as the freedom of individuals to decide their own course of life and pursue it without interference, including the freedom to determine independently their beliefs and values. In Section one other arguments for the freedom are considered; they can be related to the autonomy case, but take a somewhat different form and emphasis. The meaning of autonomy is explored in the second section, for it is an “elusive” philosophical concept (Dworkin, 1988: ix). An understanding of the concept is helpful to a full appreciation of the infuential argument for freedom of expression from autonomy which was made by Thomas Scanlon (1972), and which is considered in Section three. Though he subsequently repudiated it (Scanlon, 1978), similar arguments have been advanced by others (Strauss, 1991; Nagel, 1995). It remains a classic statement of the autonomy case. Section four discusses the very different arguments made by Joseph Raz: Autonomy is not only an individual interest, but an ideal linked to the values of diversity, pluralism, and to the public good in societies which cherish personal choice. The conclusions in Section fve assess the strength of these various autonomy arguments for freedom of expression and consider their implications for its scope.

Freedom of expression as necessary for individual self-development Freedom of expression, it has been claimed, is an integral aspect of the good life, and is essential to the self-development and fulflment of individuals. Without this freedom they could not fourish or realise their potential. These claims have frequently been made by American legal scholars who are concerned to justify the generous protection given to freedom of speech under the First Amendment to the US Constitution. Edwin Baker, for example, argued that the key First Amendment values are “individual self-fulflment and participation in change” (1978: 991). People’s choices and self-development should be respected. The values are required out of respect for the equal worth of all individuals as rational and autonomous (ibid.: 991–92). So Baker does link his argument with individual autonomy, though he rejects Scanlon’s approach to autonomy as too narrow. As will be examined in Section three, Scanlon was concerned with the freedom of citizens, based on their autonomy, to hear propositions which might infuence their beliefs and conduct; his approach, unlike Baker’s, would not cover solitary speech such as entries in a personal diary which are not communicated to others or speech which has no public content (ibid.: 992–93). Baker’s argument emphasised the role of the speaker, “the source of the speech in the self” (ibid.: 993), in contrast with Scanlon’s focus on the rights of the audience. For Martin Redish, “self-realisation” is the true value underlying the First Amendment guarantee; this ambiguous term could be understood to refer to the development of an individual’s power, or to the individual’s control of their destiny through making decisions about the course of their life (1982: 593). For Redish the concept of autonomy was too narrow, as it might be confned to the decision-making aspect of “selfrealisation”. Though these arguments are initially attractive, there are a number of diffculties with them as justifcations for freedom of expression. Many people do not in fact appear to regard free speech as vital to the good life or to their self-development (Schauer, 1982: 49) or even as their primary means of self-expression, for which they may more highly prize the choice of

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dress or of consumer goods (ibid.: 51–52). It is more promising to focus on the part expression and communication play in the development of intellectual and artistic life: Freedom of speech is closely linked to freedom of thought and (religious) belief. But then it can be objected that other goods such as education, travel and changes of work may contribute as much as speech to intellectual self-development. But few argue for constitutional rights to these goods. In short, self-development arguments, as Frederick Schauer points out, too easily collapse into an argument for personal liberty, which is much too broad for any legal or constitutional protection (ibid.: 57–58). They do not show why expression should be treated as special in order to warrant strong protection by a constitutional provision such as the First Amendment (Schauer, 1984). The diffculty can be illustrated by reference to pornography: A right to publish or look at explicit sexual material, including nude dancing, has been explained as covered by the moral autonomy of individuals in the context of their sexual lifestyle (Dworkin, 1981). Such a right should probably be regarded as an aspect of personal liberty rather than as covered by freedom of expression; it is diffcult to treat this material as falling within the scope of free speech (Barendt, 2005: 355–61).

The meaning of autonomy The concept of autonomy may derive from Kant’s Groundwork for the Metaphysics of Morals written in 1785, though there are hints of earlier antecedents (Dworkin, 1988: 12–13). Kant described “Autonomy of the Will” as the supreme moral principle, under which rational human beings must choose for themselves to respect the requirement of universal law to treat other persons as ends, not as means to achieve their own goals (2002: 91–93, 240–41). Autonomy was contrasted with heteronomy, under which people obeyed the universal law from personal inclination or out of coercion or fear of divine wrath. Modern understandings of autonomy – literally self-rule – are quite different. They refer to “a moral, political, and social ideal” (Dworkin, 1988: 10). Human beings should be free to determine for themselves a course of life and pursue it without coercion. Autonomy includes the freedom to choose what values to adopt and what beliefs to hold (and so freedom of expression), but is not exhausted by it. This understanding has been contrasted with Kant’s conception of moral autonomy (Raz, 1986: 370, note 2). Nevertheless, there are links between Kant’s arguments and modern understandings of autonomy. David Strauss bases his justifcation for freedom of speech against government restrictions on a Kantian argument: Kant contended it was always wrong to lie, as a deliberate falsehood treated other people as means to the liar’s ends. Similarly, government treats people as a means to its ends if it manipulates them by banning the dissemination of speech it considers dangerous or offensive (Strauss, 1991: 353–60). Further, both Kant’s argument for moral autonomy and modern understandings of the concept raise the question of why autonomy should be regarded as a fundamental value. Before returning to this question at the end of this section, something more should be said about what it means to lead an autonomous life and what conditions must be satisfed for a description of autonomy to be accurate. First, there must be some capacity to take independent decisions and refect on alternative courses of action with regard to a career, employment opportunities, the making of personal relationships and so on. Implicit in this condition is a requirement of personal rationality: It would be hard to describe someone suffering from dementia or mental disorder as having the ability to lead an autonomous life. Secondly, there must be freedom from coercion: Slaves and prisoners cannot conduct an autonomous life, and thirdly, there must be an adequate range of opportunities from which 68

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to choose. (For a discussion of these conditions, see Raz, 1986: 154–57, 203–7, 372; Fallon, 1994: 887–89.) A society which does not provide much school or university education and in which there is massive unemployment fails to respect autonomy, as does – more relevantly for this chapter – one which does not permit a free media and places signifcant curbs on individual freedom of expression. On this view of the concept autonomy is a matter of degree. In advanced liberal democracies many people have real autonomy, but in totalitarian societies it barely exists, except perhaps on relatively trivial matters. But even in the former, it can be asked how far most people are suffciently rational to assess rival political arguments or the claims of advertisers, say, about the effcacy of drugs or the safety of vaccines. So a descriptive conception of autonomy can be questioned. Under an alternative conception, autonomy is not an actual state but rather is ascribed to individuals, whether or not the conditions set out in the previous paragraph exist. What has been termed ascriptive autonomy captures what people may feel about their “capacity and …right to make decisions…even when those decisions are insuffciently informed, selfaware and self-critical to count as autonomous” under the standards of descriptive autonomy (Fallon, 1994: 893). Under ascriptive autonomy all are equally entitled to be self-governing; it is not a matter of fact and degree as it is with descriptive autonomy. But autonomy is not ascribed to children, as they lack the capacity to take decisions. These two perspectives may carry different implications for freedom of expression. If autonomy is a matter of degree, as it is with descriptive autonomy, it would surely make sense to limit the freedom where it is doubtful whether most people will be able to assess arguments put to them. Examples might be claims made in commercial advertisements or prejudicial media publicity affecting the fairness of a forthcoming trial. Moreover, the autonomy of the targets of hate speech might be adversely affected by its dissemination, for it arguably weakens their capacity to lead independent lives (Fallon, 1994: 894–95; Brison, 1998: 336– 38). On the other hand, the alternative perspective may justify strong protection for extreme political speech, including hate speech, as in the United States (Post, 1991: 279–83). If equal autonomy is to be ascribed to everyone, all must be entitled to contribute to public discourse and to determine for themselves what to believe (see Scanlon’s argument considered in the third section below). Which of these two conceptions is the more coherent? The descriptive conception appears more realistic, for we know that there are limits on freedom of expression and other freedoms, and these limits are generally regarded as legitimate. It also gives some, albeit vague, content to the idea of autonomy, by setting out the circumstances in which it is valued in social practice. Ascriptive autonomy, on the other hand, better justifes the equal rights of all to participate in a democracy through public discourse and voting. It presupposes personal freedom, as Kant argued with regard to moral autonomy: All rational beings must presuppose that they act with free will (Kant, 2002: 246–64). Liberty is a necessary condition for autonomy, though the two concepts are not identical (Dworkin, 1988: 13–15, 104–6). The ascriptive conception better answers the question posed earlier in this section: Autonomy is to be valued, for otherwise we would have no sense that we are acting freely.

Scanlon’s autonomy argument for freedom of expression In a much discussed article, Thomas Scanlon argued for what he termed the Millian Principle: It is wrong for the state to limit expression on the ground that its dissemination will lead to harm to individuals from forming false beliefs or to harmful consequences from them acting 69

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on those false beliefs (1972: 213). The Principle is not justifed on the basis that its adoption will lead to a better society, so it is not a consequentialist argument (ibid.: 214) but, rather, it is grounded on respect for autonomy: “A person must see himself as sovereign in deciding what to believe and in weighing competing reasons for action” (ibid.: 215). Although they may accept the authority of government to proscribe harmful actions, autonomous persons would not surrender their freedom to assess the government’s reasons for such proscription and weigh against them their own judgment whether it is right to pursue illegal conduct. An autonomous citizen must decide himself, for example, whether he may deface a statue or whether he may rob a bank, even though these acts clearly involve criminal offences. Scanlon did not assume that everyone is perfectly rational but argued that they should be willing to put forward independent reasons for assessing the competing arguments (ibid.: 215–16). The argument strongly suggests he was adopting an ascriptive conception of autonomy: The ability to make independent judgments on what to believe and do must be imputed to everyone. Scanlon’s thesis has been strongly criticised on a number of grounds. First, citizens realise that they are potential victims of terrorism or an assault, and for that reason would readily accept the proscription of terrorist propaganda or incitement to violence, which they would not do on Scanlon’s arguments (Amdur, 1980: 299). Further, it was wrong for Scanlon to assume, if he did, that people could rationally consider, say, misleading commercial claims, or would rationally assess the arguments made by racists peddling hate speech (Brison, 1998: 328). The most fundamental criticism is that most people would happily allow government the authority to proscribe what it judged extreme or harmful expression without feeling that they thereby surrendered their autonomy: They would consider that government is in a better position than they are to appreciate the dangers of, say, terrorist propaganda or infammatory speech (see Dworkin, 1988: 27–28; Greenawalt, 1989: 150–52; Brison, 1998: 328–30). Scanlon has subsequently withdrawn the Millian Principle (1978: 532–35). The Principle gave the interest of the audience in hearing expression too much weight and ignored the interests of bystanders who might be the victims of violence provoked by it. Autonomy should be understood as “the actual ability to exercise independent rational judgment”, rather than as a constraint on authority (ibid.: 533). In this way Scanlon appears to adopt the descriptive conception of autonomy: Whether autonomy justifes freedom of expression depends on assessing empirically whether people can, and do, rationally consider the claims made in acts of expression, and on considering the harms which extreme expression might incite. In his 1978 article Scanlon also suggested that the weight of autonomy arguments might vary according to the category of expression: There are stronger reasons for allowing citizens autonomy to consider political claims than those made by commercial advertisers. Despite Scanlon’s withdrawal of his autonomy thesis, similar arguments have been made by other writers. David Strauss put forward a persuasion principle, under which speech should not be restricted on the grounds that it persuades citizens to adopt particular opinions or act on them in harmful ways. His principle is broader than Scanlon’s in that it covers persuasion by private actors as well as by government (1991: 334, note 62). Thomas Nagel, a notable political philosopher, has defended a general moral right to freedom of expression: “the sovereignty of each person’s reason over his own beliefs and values” requires freedom to express his own views and of exposure to the views of others (1995: 96). Unlike Scanlon, both Strauss and Nagel give as much weight to the interests, and rights, of speakers, as those of the audience. But all three writers show why freedom of expression is special: If it works 70

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at all, respect for autonomy requires the government, and perhaps others, to abstain from interference with the formation of citizens’ beliefs and their expression (Schauer, 1982: 71). In that respect their arguments are stronger than those considered in Section one of this chapter, which do not adequately distinguish free speech arguments from those which may be advanced for a general right to liberty. But Scanlon’s thesis is unconvincing: It does not show why an autonomous citizen might not leave to government the discretion to decide which beliefs – outside probably the sphere of democratic politics – are harmful.

Raz’s autonomy arguments Joseph Raz has advanced quite different arguments for freedom of expression. In his view the freedom is a public good (1991: 306–9). Both freedom of speech and the related freedom of the press serve collective goods: They promote the interest of everyone in living in an open, free and democratic society, whether or not they are regarded as valuable rights by individuals (Raz, 1986: 253–54; Raz, 1991: 303–4). At frst glance these might not appear to be arguments from autonomy. But the general thesis advanced by Raz in The Morality of Freedom establishes personal autonomy as central to his case for recognising some political freedoms, including freedom of expression. Respect for autonomy is entailed by respect for all the interests people have in their personal well-being (Raz 1986: 190–91). Leading an autonomous life means that each person is “part author of his own life” (ibid.: 204) with the capacity to choose and pursue it. That capacity involves having suffcient rationality to make and refect on signifcant choices, but also a range of options from which to select. There should also be freedom from coercion and manipulation. The provision of an adequate range of options is a matter for society and its government, and is dependent on cultural circumstances (ibid.: 205–7, 246–47, 369–78). There is no right to personal autonomy, for the ascription of such a right would impose duties on other members of a society to satisfy it, but personal autonomy “may be a moral ideal to be pursued by…political action”, and it may serve to justify certain derivative rights, refecting aspects of individual autonomy (ibid.: 247). An individual’s freedom, understood as personal autonomy, can be realised only through collective goods, though of course it may sometime confict with them (ibid.: 250). Whether autonomy really exists, or how far it is realised, is therefore a matter of degree, dependent on political, social and cultural factors. The conception is clearly a descriptive account of the concept (see section two above). Raz draws a number of implications from his autonomy argument. Although independence from coercion is an important aspect of autonomy, it would be wrong to defne the concept as a right against coercion (ibid.: 207), as Scanlon would appear to do, Rather, the provision of some collective goods – public education or health – justifes state intervention, even interference with individual choices, on the ground that overall autonomy would be thereby promoted. In the last chapter of The Morality of Freedom Raz considers the broad political implications of his arguments. They make the case for positive freedom through the provision of an adequate range of options for individuals and the development of their mental ability to lead an autonomous life. The state has the duty not merely to prevent interference with autonomy, but to promote it (ibid.: 425). One implication which has been drawn is that Raz’s autonomy argument justifes the recognition of positive rights to freedom of expression, for example, rights of access to the media or to reply to personal attacks (Kenyon, 2021: 97–8). The freedom is not just a negative liberty, as it is usually understood (Barendt, 2005: 100–16). 71

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In an article in the Oxford Journal of Legal Studies Raz (1991) advanced a slightly different justifcation for freedom of expression, though it shares features of the autonomy argument. In addition to its role in the working of an open democracy, the freedom serves a public good by validating different forms of life, reassuring those whose ways of life are portrayed in the media that they are not isolated and their diffculties are shared by others (ibid.: 309–13). The censorship and criminalisation of such expression expresses disapproval of the way of life, of which the prohibited communication is a part, for example, homosexual magazines or messages outlawed in a society which does not tolerate gay sexual relations. It insults those whose way of life is targeted and denies the public good of all in a tolerant, pluralist society (ibid.: 313–16). The case for freedom of expression in this article shares the emphasis in The Morality of Freedom on the public good over that often placed on individual rights. They adopt consequentialist arguments for the freedom: It is conducive to personal autonomy and validates different forms of life. There is only a brief mention of autonomy in the Oxford Journal article. Raz argues it would be wrong to proscribe what society, or its government, may consider bad speech, for example, pornography or what it judges to be false ideas, because even that speech might be an aspect of some individuals’ style of life. Bans would deny their autonomy. It cannot be said in reply that the bad speech is not a vital part of their life, since that would reject their “sovereignty over defning what their way of life is” (ibid.: 318). But Raz leaves open the question what styles of life might be considered unacceptable, so it would be legitimate to ban associated speech (ibid.: 319). Might it be legitimate to prohibit hate speech, say, antiSemitic rhetoric, even though that forms an important aspect of the way of life of members of a far-right political party? This question raises diffculties for autonomy arguments, discussed in the concluding section of this chapter.

Conclusion: An assessment of autonomy arguments This chapter has considered whether freedom of expression is an intrinsic aspect of personal autonomy or alternatively whether exercise of the freedom leads to autonomy, the consequentialist perspective. On either version the argument provides an attractive justifcation for the freedom, focussing on the individual interests, or rights, of speakers and audiences. But one diffculty is that exercise of the freedom might sometimes damage the autonomy of others, in particular the targets of hate speech or women portrayed as objects in explicit pornography. Just as speech enables writers to develop and articulate their personal vision, so it may injure the self-esteem of others by lowering their reputation or by questioning their membership of society. Nazi propaganda validates the style of life led by some extremists, and so perhaps promotes their autonomy, but equally it undermines the autonomy of members of the Jewish community and others targeted by such propaganda; it becomes much more diffcult for them to pursue their own way of life. Moreover, racist speech, it has been argued, silences its targets, with the result that members of a minority ethnic group do not articulate their views at all, or they are not treated seriously when they are expressed (West, 2012: 222). The same argument can be made about pornography and other forms of misogyny: They may silence women or devalue their expression (MacKinnon, 1993). On the descriptive account of the concept the existence of autonomy is a matter of degree. The judgment how far it justifes freedom of expression surely requires assessment of relevant social and cultural conditions: How far do they in fact promote the capacity of individuals to formulate their own plans and make rational choices and how far do they provide a range 72

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of opportunities from which people can choose? In any society which values individual wellbeing and diverse, pluralist modes of life, personal autonomy does justify freedom of expression, and further, as Raz persuasively argues, it warrants the recognition of some positive free speech rights (1986: 424–29). But a comprehensive descriptive account of autonomy surely also requires consideration to be given to the impact of expression on the autonomy of the audience and other members of the public; that might weaken the autonomy justifcation of freedom of expression. These diffculties may perhaps be avoided if the ascriptive conception of personal autonomy is adopted. On that view all must see themselves as exercising a sovereign right to determine their own life, including their beliefs and courses of conduct. The weaknesses of this perspective have been exposed in the earlier discussion of Scanlon’s argument for freedom of expression: Section three. Insofar as it is used, as it is by some American scholars (Redish, 1982; Post, 1991) to justify uninhibited public discourse as the foundation of the First Amendment, it may confate the autonomy and democracy arguments for free speech. For Post such discourse is required by respect for the right of free individuals to political self-determination (1991: 280–85), but that right is not a clear inference from personal autonomy. It should be seen as a reformulation of the democracy justifcation of freedom of speech. There must therefore be considerable reservations about accepting the autonomy argument for freedom of expression. The idea of autonomy is too complex and controversial to justify the freedom. The ascriptive conception ignores the costs of expression, the damage which its exercise might do to the autonomy of others, for example, victims of hate speech (Cohen, 2009: 111–12, 120). It can be salvaged only by reformulating it as a version of the arguments from democracy and by pointing to the danger of government restrictions of speech. One fnal point may be made. It was pointed out in the opening paragraph of this chapter that many autonomy arguments focus on the interests of individuals rather than on the good of society as a whole (though that is not true of those made by Raz – see Section four). This means that they have less salience for the media than the arguments from truth and democracy considered in elsewhere in this volume.

References Alexander, L. (1998) “Freedom of speech.” In Encylopedia of Applied Ethics, Vol. 2, R. Chadwick (ed.) (San Diego: Academic Press) 299–305. Amdur, R. (1980) “Scanlon on freedom of expression.” Philosophy & Public Affairs, 9(3), 287–300. Baker, C. E. (1978) “Scope of the frst amendment freedom of speech.” UCLA Law Review, 25, 964–1040. Barendt, E. (2005) Freedom of Speech, second edition (Oxford: Oxford University Press). Brison, S. J. (1998) “The autonomy defense of freedom of speech.” Ethics, 108(2), 312–39. Cohen, J. (2009) “Freedom of expression.” In Philosophy, Politics, Democracy: Selected Essays (Cambridge, MA: Harvard University Press) 98–153. Dworkin, G. (1988) The Theory and Practice of Autonomy (Cambridge: Cambridge University Press). Dworkin, R. M. (1981) “Is there a right to pornography?” Oxford Journal of Legal Studies, 1(2), 177–212. Fallon, R. H. (1994) “Two senses of autonomy.” Stanford Law Review, 46(4), 875–905. Greenawalt, K. (1989) “Free speech justifcations.” Columbia Law Review, 89(1), 119–55. Kant, I. (2002) Groundwork for the Metaphysics of Morals, T. E. Hill and A. Zweig (eds.) (Oxford: Oxford University Press). Kenyon, A. T. (2021) Democracy of Expression (Cambridge: Cambridge University Press). MacKinnon C. A. (1993) Only Words (Cambridge, MA: Harvard University Press).

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Eric Barendt Nagel, T. (1995) “Personal rights and public space.” Philosophy & Public Affairs, 24(2), 83–107. Post, R. C. (1991) “Racist speech, democracy, and the frst amendment.” William and Mary Law Review, 32(2), 267–327. Raz, J. (1986) The Morality of Freedom (Oxford: Oxford University Press). Raz, J. (1991) “Free expression and personal identifcation.” Oxford Journal of Legal Studies, 11(3), 303–24. Redish, M. H. (1982) “The value of free speech.” University of Pennsylvania Law Review, 130(3), 591–645. Scanlon, T. M. (1972) “A theory of freedom of expression.” Philosophy & Public Affairs, 1(2), 204–26. Scanlon, T. M. (1978) “Freedom of expression and categories of expression.” University of Pittsburgh Law Review, 40(4), 519–50. Schauer, F. (1982) Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press). Schauer, F. (1984) “Must speech be special?” Northwestern University Law Review, 78(5), 1284–1306. Strauss, D.A. (1991) “Persuasion, autonomy, and freedom of expression.” Columbia Law Review, 91, 334–71. West, C. (2012) “Words that silence? Freedom of expression and racist hate speech.” In I. Maitra and M.K. Gowan (eds.), Speech & Harm: Controversies over Free Speech (Oxford: Oxford University Press) 222–48.

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7 BENTHAM AND SECURITY AGAINST “MISRULE” Jesse Owen Hearns-Branaman

Introduction On March 29, 1960, a fundraising advertisement full of factual inaccuracies was published in The New York Times. Paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South, the ad described many actions taken in Montgomery, Alabama, by the police and other government offcials against civil rights protestors and was signed by over 100 celebrities and religious leaders. Despite not being directly named in the advertisement, L. B. Sullivan, the public safety commissioner for Montgomery wrote to the Times requesting an offcial retraction of the advertisement as a prelude to a potential libel action. The Times did not retract the ad, replying to Sullivan that it did not refect on him personally or in his offcial capacity. This did not appease Sullivan who then sued the Times and several of the signatories for libel and soon after won a settlement. This suit was part of a larger movement against civil rights activism and, in this case, was used as a way to silence news organisations around the country; the Times was not even widely circulated in Montgomery (Kagan, 1993) and therefore was simply an opportunity to enact part of their larger plan to suppress such activism. Yet the case continued up the US legal system, and despite its small beginnings in the end was the impetus for larger, long-standing changes to defamation case law. The Times appealed to the State Supreme Court, who affrmed the lower court’s decision. It was then appealed again, this time to the U. S. Supreme Court. In a unanimous decision, the court ruled that the Alabama court’s decision violated the First Amendment’s protections for freedom of the press and free speech, famously stating that the First Amendment protects the publication of all statements, even false ones, about the conduct of public offcials except when statements are made with actual malice (with the knowledge that they are false) or in reckless disregard of their truth or falsity. (The New York Times Co. v. Sullivan, 1964) The court’s decision was the most radical expansion of the freedom of speech and curtailing of excessive defamation and slander to that point. It was deemed that allowing news media DOI: 10.4324/9780429262067-9

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more fexibility in the creation of content was necessary for the press to function as part of the checks-and-balances system essential to the functioning of US democracy. Because the plaintiff was a government offcial, this afforded him less, not more, protection from defamation due to his position of power. It also established the “actual malice” standard, in that false statements are only defamatory if made on purpose to impugn the reputation of a person. As The New York Times Editorial Board (2014) itself noted on the 50th anniversary of the decision, our current “understanding of freedom of the press comes in large part from the Sullivan case” and the decision’s “core observations and principles remain unchallenged”, even in the era of the internet. However, what is not widely known when discussing the Sullivan case was that a nearly identical position regarding defamation was taken by Jeremy Bentham who, in his writings about free expression around the turn of the 19th century, advocated a similarly “radical” position. This is somewhat lost in the history of free speech because, unlike most other advocates of free speech, his ideas come from the utilitarian, not libertarian, tradition. According to Bentham, the “central function of the press […] is to identify and censure abuse of government power” and thus the “value of free speech is accordingly instrumental, not intrinsic” (Niesen, 2019: 4). Bentham’s writings and ideas on the topic were never put into practice, a failure that he took to heart yet was not able to be reconciled on his own terms. As Shanafelt notes, “For his earnest and passionate engagements with various governments on the subject of legal reform, Bentham was much more celebrated than heeded” (2020: 214). Unlike his contemporaries and predecessors whose concepts of freedom of expression are well known, and whose writings founded the basis for much of the early arguments around the role of free speech and free press in democracies, Jeremy Bentham’s ideas were, as this chapter will argue, too radical to be taken up at the time. His criticisms of the hypocrisy of slave-holding governments which denied equal rights to women and minorities basing their systems upon an argument for the universal rights of “man” also did not gain him any friends. While obvious to contemporary observers, many of his ideas, while theoretically and ethically sound, were far too out of the mainstream to be taken as serious propositions about the proper functioning of government at the time. The Montesquieu-Madison-type separation of powers discourse did not include robust defences for free expression, as the history of free press and free speech jurisprudence, from the Alien and Sedition Acts (1798) to Abrams v. United States and the 1919 Sedition Act to Dennis v. United States (1951), would attest. The standards set by Bentham, however, would have leapfrogged over those cases straight to the modern “actual malice” and “reckless disregard for the truth” standards of Sullivan. Bentham’s conception of “security against misrule” argued that a separation of powers in the government was certainly needed, but that it would be useless without concurrent robust protections for free assembly, free speech and free press. By his utilitarian calculation, defamation against one person or a small group has a less delirious effect than the censoring of public discussion and free expression.

Separation of powers As with other Enlightenment-era writers, Bentham’s work was part of the reaction to the delegitimisation of the vested powers of the monarchy and church and the reinvestment of those powers in “man”. Writers such as Locke and Montesquieu, and later the American founding fathers, based their arguments on the natural rights thesis. For example, in the second of 76

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Locke’s (1689) Two Treatises of Government, he delineates different roles for legislative and executive branches of government in preserving the “common-wealth” of the community. Such distinctions draw from his view of the natural state of humans in that legitimate authority can only come from the consent of the people and be non-violent in nature. In The Spirit of Laws, Montesquieu (1750) develops this point further: Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. […] To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. We can see the reliance of their theories of the necessity of the separation of power based on their conceptualisation of a “natural” state of affairs for humans; we naturally want to abuse any power that we have, we naturally want to exercise authority in a non-violent way that involves the consent of the people. Yet this had not been the condition under authoritarian monarchies supported by the equally autocratic church who had unnaturally and often violently suppressed efforts to check power and had ignored the consent of the people. Thus, to correct these past abuses we need to conceptualise a set of natural rights of people and create a system of checks and balances on power in order to protect these assumed rights. These rights need also to be enshrined in a constitution and form the basis for a national legal system. This was carried out, for example, in US constitutional theory in writings such as James Madison’s “Federalist paper #51” (Madison, 1788). The relevant and oft-quoted section asserts: Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a refection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all refections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. (Madison, 1788) Thus, due to the “nature” of humans, governmental powers need to be separated in order to make sure that ambition is not concentrated in one person or estate as it is under the more centralised monarchical states. The weakness of this, as mentioned above, is the lack of conceptualisation of how this balance would work in regard to the free press. The discourse of journalism as the Fourth Estate, checking the power of the other three, was not formalised until the 19th century, being variously attributed to British politician Thomas Macaulay, calling “the gallery where the reporters sat in Parliament a ‘fourth estate of the realm’” in 1828 (Boorstin, 1961: 16), or from the book The Fourth Estate (Hunt, 1850). Indeed, the original framers of the US constitution had only vague notions of what a free press or free speech meant (Levy, 1960, 1985), and it was only through “a number of latter-day reasons […] to support freedom of expression” (Carter, Franklin & Wright, 2008: 34) that modern free speech and press theories have been derived. This is due to the ambiguity of “speech” as a natural right in their 77

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conception, one which Bentham’s utilitarianism dealt with directly, as will be explored later in this chapter.

Opposition to natural rights While Bentham did follow Montesquieu and Locke in the search for a proper separation of powers, he did not do so from a natural rights perspective. He did not believe in “natural rights” of people, and thus rejected the basis of, for example, the American Declaration of Independence and the notion of “all men being created equal”. As Shanafelt argues, Bentham’s utilitarian rights concepts are “a kind of antidote to this emergent European and American libertarianism, in which so-called natural, human or divine rights were romanticized as inviolable, but only for those whose rights were not already limited by law” (2020: 207). Bentham’s frst attempt to argue against natural rights came in reaction to the US Declaration of Independence (Bentham, 1776), a short essay now attributed to Bentham which is attached to a larger work attributed to John Lind (1776) although neither was named in the original publication. Bentham makes many pointed rebuttals of the contradictions in the Declaration of Independence, for example that “nothing which can be called Government ever was, or ever could be, in any instance, exercised, but at the expense of” the rights outlined in the declaration (Bentham, 1776). That is to say, government by defnition is an institution whereby rights are limited as these rights have to be delineated in laws or such declarations. As Hart (1976: 559) notes, Bentham viewed governments […] as potential criminals perennially tempted to pursue their personal interests at the expense of the public. This was the standing confict between the sinister interest of the ruling few and the interest of the subject many. Rules therefore were to be regarded like potential robbers whom it was necessary always to suspect and always to subject to the control of the public. Bentham further notes the hypocrisy of saying that “the pursuit of happiness” is an unalienable right when at the same time the colonists were denying those rights to others, such as in the unsuccessful invasion of Quebec in 1775 by the Continental Army. The phrase “all men are created equal” is similarly mocked: This surely is a new discovery; now, for the frst time, we learn, that a child, at the moment of his birth, has the same quantity of natural power as the parent, the same quantity of political power as the magistrate. (Benthan, 1776) As Shanafelt (2020: 205) argues Bentham was bothered by the absurdity of rights discourse, not merely because of its hypocrisy in nations of slaveholders, colonies, and patriarchs, where the will of a few clearly still controlled the daily lives of many, but because of its cynicism. If it were true that the modern state exists only to facilitate the natural liberty of its inhabitants, then why does the law itself restrict the liberty of most of those people? Bentham concluded that rights discourse is not a promise yet to be fulflled, but a lie that has the potential to invalidate the entire legal system. 78

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In the end, Bentham’s point is that that the ideals of the Declaration of Independence do not match the reality of life, children do not have as much power as adults and politicians and the hypocrisy of a patriarchal, white supremacist, slave-holding state advocating for equal rights cannot be ignored. He is not opposed per se to the independence of the American colonies but is deeply offended and opposed to the logic upon which the declaration is based. A system of laws and ethics formed on the back of these “natural rights” ignores the inequalities in power structures, it hides the “subverting a lawful Government” behind “a cloude [sic] of words” (Bentham, 1776). Bentham’s utilitarianism argues the ends justifying the means is the only way in which people can have rights through the law, and laws must be made to ensure the maximisation of pleasure and the minimisation of pain. If rights are natural they have to be guaranteed through “the means”, i.e. laws which guarantee “freedom” or other abstract notions irrespective of “the ends” such guarantees would have. Natural rights view the process backwards. Laws made under the utilitarian framework are agnostic to any supposed “natural” rights one might have because it is the empirical results that we should use to judge the quality of a law. As Schofeld (2003: 2) points out, While Bentham certainly disputed the existence of any metaphysical basis for rights (whether natural rights or, in contemporary parlance, human rights), he recognized that the language of rights might be used to state moral claims, although he also argued that the phrase ‘securities against misrule’ would be much more appropriate than the substantive term ‘rights’ in this context. Bentham argued that human rights did not come from a higher power or nature but should be arrived at by a utilitarian formulation. Yet he did not hold freedom of expression to be a special kind of right above others. Bentham’s espousal of liberty of the press and public discussion was no more profoundly liberal or libertarian than his endorsement of any other species of liberty. It was founded upon a purely utilitarian calculus of the good and evil consequences involved in the establishment and maintenance of those liberties. (Long, 1977: 205–6) Furthermore, unlike Locke or the American founding fathers, Bentham did not believe in the hierarchy of rights, such as life, and then liberty, and then property. In a utilitarian formulation, imposing rights in such an arbitrary order is meaningless. In some cases, perhaps, upholding property rights would bring more happiness to more people and have better longterm effects on society than simply upholding the right to life. Bentham argued it was not our job to frst create a legal system based on a limited set of natural rights or “established law and morality (law and morality as it is)” and instead held it was better to base laws and morality on how “it should be according to the principle of utility (law and morality as it ought to be)” (Schofeld, 2003: 2). Now that his negative attitudes towards natural rights have been outlined, we will now look at how he formulated his positive attitudes towards the utilitarian position.

“Principles of morals and legislation” Bentham’s original utilitarian theory argues that “nature” has caused the avoidance of “pain” and the pursuit of “pleasure” to be the “two sovereign masters” which unavoidably gov79

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ern our choices in life and our actions, not only for every “private individual” but also “of every measure of government” (Bentham, 1789: Ch 1, I–II). We must therefore judge any governmental law by its “tendency” to “augment or to diminish the happiness of the community” which then gives us an objective moral and ethical standard because doing so gives “meaning” to concepts such as right and wrong (ibid: VII–X). Bentham titled the opposite of utilitarianism as “asceticism” in which one is “approving of actions in as far as they tend to diminish [ones] happiness” and “disapproving of them in as far as they tend to augment it” (ibid: Ch 2, II–III). Such aesthetics can be divided into two groups, “moralists” who are motived by “hope” (“the hope of honour and reputation at the hands of men”) who only “reprobate pleasure” and “religionists” who are motivated by “fear” (“the fear of future punishment at the hands of a splenetic and revengeful Deity”) and who have made “it a matter of merit and of duty to court pain” (ibid: V–VI). While this defnition seems quite hyperbolic, the basic point he is trying to make is that asceticism is unable to be “consistently pursued by any living creature” because it “approves or disapproves of certain actions […] merely because a [person] fnds [themselves] disposed to approve or disapprove of them” (ibid: IX–XI). Asceticism is a “principle in name” only, and this is because it is not determined by an “external consideration” (ibid: XII) and only subjective/internal considerations, whereas utilitarianism is grounded on what he perceives as objective/external considerations regarding pain and pleasure. He summarises his main position, saying “it will be good or bad according to its effects: according to the effects it has in augmenting or diminishing the happiness of the community” (ibid: XI). While these ideas were more theoretical in nature, 30 years later Bentham had the chance to advocate for how they can be accomplished in practice.

“On the liberty of the press” As Niesen notes, “the early Utilitarian conception of free speech is a clear and coherent political doctrine” because it is “grounded in the antagonistic constellation between rulers and ruled” (2019: 8). Bentham got the chance to outline this during the anti-monarchal political revolutions and rise of republicanism in 19th-century Europe. In October 1820 he composed four letters (herein after referred to as OLP 1, 2, 3 and 4) sent to the Cortes Generales, the Spanish Parliament, eight months after a liberal uprising against Ferdinand VII during Spain’s Trienio Liberal. The uprising was spurred on by the rejection of the 1812 constitution by Ferdinand VII, the loss of Spanish economic power due to the ongoing anticolonial revolutions in South and Central America, and the general trend amongst liberals in Europe to establish further checks on the power of monarchies. It sought to restore the 1812 Constitution which included a strong free expression article: Every Spaniard possesses liberty to write, print and publish, his political ideas, without any previous licence, permission or revision, under the restrictions and responsibility established by law. (Spanish Constitution of 1812, Article 371) In these letters, Bentham outlined his free speech and free press ideas which were clearly in support of the uprisings’ objectives and Article 371. Bentham’s advice is frmly utilitarian in nature, noting that “whatsoever evil can ever result from this liberty [of speech and press], is everywhere, and at all times, greatly out80

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weighed by the good”, the latter being “plainly infnite” in its function to secure “good government” while the former “evil” against individuals would “be comparatively minute” (OLP1). For Bentham, this calculation is quite simple and does not need to rely on the libertarian notion that free press and speech being are paramount in and of themselves. He later argues that “In all liberty there is more or less of danger” and asks rhetorically if there is more danger “in power limited by this check, or in power without this check to limit it”, giving the example of the USA and UK as places which are “by universal acknowledgement […] the happiest” (OLP1). Bentham notes that any speech “betokening disapprobation of the texture of the government, or of the conduct of any person bearing a part in the exercise of the powers of Government” necessarily “conveys and imputation on reputation” as is inherently defamatory (OLP1). Bentham argues that, traditionally, the punishment for defamatory speech “rise[s] in magnitude as the rank of the person offended rises” while he argues that it should be “the reverse” (OLP1). He gives two categories, 1) “there should be no punishment at all” for speech about a “public functionary” if the speech is only abusive language (“vituperation”), and 2) and if the speech is “false and groundless” there should only be punishment if it is “the result of willful mendacity” (i.e. “actual malice”) and with “consciousnesses of its falsity” or “culpable rashness” and carelessness (i.e. “reckless disregard for the truth”) (OLP1). He also argues that in all cases “the defendant should be at liberty to make proof of the truth of the imputation” (OLP1). Bentham thus encourages the Cortes to “insert [a] declaration” into the constitution “giving the people the assurance that […] they remain at liberty, at all times […] to meet, for the purpose of delivering their opinions, in the freest manner, on the conduct and character of their rulers” because rulers are, in the end, “not their masters but their servants” (OLP1). The only caveats are that the meetings be conducted in a place that they are allowed to use and there is no “performance of any act importing bodily or other injury to any individual” (OLP1). Bentham echoes Montesquieu in his framing of the situation, that men in power “will do what all men are disposed to do in their place” in that “they will embrace every opportunity for sacrifcing the interests of the whole community to their own particular interests”, for example, using the offce for their own personal gain, i.e. “emolument”, and giving positions of power “to persons in dependencies, or otherwise in private connection with them”, i.e. nepotism or cronyism (OLP1). Thus, free press and free assembly are needed to “check” on power (OLP1). In a criticism of the proposed constitutional amendments for “The law regarding public societies”, Bentham shows how the articles’ effect would really be the “prevention of public societies”. For example, article 3 states that “Meetings shall not take place but in virtue of the permission of the local authority” due to the need for “public tranquillity” (quoted in OLP2), to which Bentham replies “As to permission, – in every case in which there is neither need of, nor use in, any such public meeting, permission will be ready for it: in every case in which there is need of it, or use in it, punishment will be ready for it” (OLP2). In other words, authorities would only permit the meeting of public societies if they are harmless and do not challenge the authorities, for why would an authority permit the meeting if they are the “subject of complaint”? He argues that non-despotic governments need to have an “essential character” which “cherish[es] the disposition to eventual resistance” to that government, such as the USA, noting that even the “liberticide” 1798 Sedition Act did have an “expiration” date (OLP2). 81

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Bentham relates free expression directly to the notion of checks and balances to political power. Free press and free assembly have “two perfectly distinct, though so intimately connected uses”, the frst assisting in (or “effecting”) “a change in government, if ever, and when necessary” and the second “preventing, or at least retarding, the necessity” for a change in government “by the constant application of a check to misrule” (OLP2). By contrast, the libertarian perspective includes no such clauses for when governments need to be “changed”, only relying on elections and the subsequent movements of political power from one elite sector of the nation to another. A proper utilitarian political order, a “good government”, must give “facility to this [kind of] communication” in order to facilitate “eventual […] resistance to government […] should necessity require […] a change in government’ (OLP2). Again, his model is the USA, which theoretically “laid the foundation of eventual resistance to itself” (OLP2), although as the subsequent 200 years have shown an increasing entrenchment of political power which would prevent the total overthrow of the government, instead relying on slow, subtle changes through elections and legal actions. For Bentham, this is the key aspect of a democratic political order. In an “undespotic” government “a man shall have no more to fear from speaking and writing against [the government], than from speaking and writing for them” (OLP2). Again, this seems entirely common sense from the modern perspective, but at the time was too radical. Indeed, such liberal republican movements in Europe alarmed the remaining monarchies so much that, at the Congress of Verona in 1822, the Quintuple Alliance of Russia, Britain, France, Prussia and Austria tasked France with restoring King Ferdinand VII to the throne in Spain. After the reinstatement of the monarchy, the liberal constitution was declared null and any such progressive movements came to an end in Spain for the time being.

Conclusion Bentham demonstrates that the problem with abstract rights discourse is that, when applied to actual conditions of relative political and social disenfranchisement, it necessarily results in a struggle over whose rights must take precedence. Without an accessible means of redress for people whose rights had been violated, rights discourse exposes the weak to the violence of the strong, whose own exercise of freedom from legal authority would be nearly limitless. (Shanafelt, 2020: 206–7) The rights-based approach to free speech and press was very slow to evolve as it was often argued to be a right of lower importance than rights that would protect the powerful, i.e. the “right” not to be defamed or slandered. The frst landmark US Supreme Court case limiting prior restraint on the press across the US was Near v Minnesota (1931) in which the court ruled an injunction against publishing based on the Minnesota state Public Nuisance Law of 1925 was unconstitutional, according to the Fourteenth Amendment which extends First Amendment protections onto state laws. The Saturday Press newspaper had published a series of articles critical of various government offcials for not dealing with organised crime suffciently, asserting that they had ignored such crimes due to corruption. While the injunction was upheld by lower courts, stating that the Public Nuisance Law was needed in order to maintain public order and morals, the Supreme Court rejected this argument. They ruled that the statute was “an infringement of the liberty of the press” and, importantly, that “the question of the truth of the charges con82

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tained in the particular periodical” was not relevant. This was, however, as Myerson notes, only the frst major Federal-level rejection of prior restraint, as state- and local-level courts had, throughout the 19th century, defended the limitations of prior restraint (Myerson, 2001: 313–14, 324–36). Even the much-reviled Sedition Act of 1798 ensured no prior restraint (ibid: 322). The next major case was NYT v Sullivan (1964), as discussed in the introduction, introduced the concept of “actual malice” for defamation. The Pentagon Papers case (New York Times Co. v. US, 1971), by contrast, was largely ruled due to the historical nature of the documents in question, in that they did not present an “immediate” threat to the US national security, and thus the injunction against The New York Times against publishing material based on the leaked classifed report was lifted. While not explicitly couched in terms of utilitarianism, the modern legal framework rejecting any “prior restraint” on publication and applying the standards of “actual malice” and “reckless disregard for the truth” to defne legal liability for defamatory statements is of a highly utilitarian nature. While Bentham was ignored at the time due to the radical implications of his utilitarian calculus, his conceptualisation would have protected free expression far greater than natural rights-based law and provided greater security against misrule.

References Abrams v. United States (1919) 250 U.S. 616. Bentham, J. (1776) Short Review of the Declaration Retrieved from classroom.monticello.org/view /74026/. Bentham, J. (1789) Introduction to the Principles of Morals and Legislation Retrieved from www.laits .utexas.edu/poltheory/bentham/ipml/ipml.toc.html. Boorstin, D. (1961 [1992]) The Image (New York: Vintage). Carter, T. B., Franklin, M. A. and Wright, J. B. (2008) The First Amendment and the Fourth Estate: The Law of Mass Media, 10th ed. (New York: Foundation). Dennis v. United States (1951) 341 U.S. 494. Hart, H. L. A. (1976) “Bentham and the United States of America.” The Journal of Law & Economics, 19(3): 547–567. Hunt, F. K. (1850) The Fourth Estate: Contributions Towards a History of Newspapers, and of the Liberty of the Press (London: David Bogue). Kagan, E. (1993) “A libel story: Sullivan then and now (reviewing Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment [1991]).” 18 Law and Social Inquiry: 197: 197–217. Levy, L. W. (1960) Legacy of Suppression: Freedom of Speech and the Press in Early American History (Cambridge, MA: Harvard University). Levy, L. W. (1985) Emergence of a Free Press (Oxford: Oxford University). Lind, J. (1776) An Answer to the Declaration of the American Congress. Locke, J. (1689) Two Treatises of Government Retrieved from www.gutenberg.org/fles/7370/7370 -h/7370-h.htm. Long, D. (1977) Bentham on Liberty: Jeremy Bentham’s Idea of Liberty in Relation to his Utilitarianism (Toronto: University of Toronto Press). Madison, J. (1788) “The structure of the government must furnish the proper checks and balances between the different departments” [a.k.a. Federalist Paper #51]. New York Packet, Feb 8. Montesquieu, C. (1750) The Spirit of the Laws, T. Nugent (tr) Retrieved from www.constitution.org/ cm/sol-02.htm. Myerson, M. I. (2001) “The neglected history of the prior restraint doctrine: Rediscovering the link between the frst amendment and the separation of powers.” Indiana Law Review, 34: 295–342. Near v. Minnesota (1931) 283 U.S. 697. New York Times Co. v. Sullivan (1964) 376 U.S. 254. New York Times Co. v. US (1971) 403 U.S. 713.

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Jesse Owen Hearns-Branaman New York Times Editorial Board (2014) “The uninhibited press, 50 years later.” New York Times, Mar 18. Niesen, P. (2019) “Speech, truth and liberty: Bentham to John Stuart Mill.” Journal of Bentham Studies, 18(1): 1–19. Schofeld, P. (2003) “Jeremy Bentham’s ‘Nonsense upon stilts’.” Utilitas, 15: 1–26. Shanafelt, C. D. (2020) “Against rights: Jeremy Bentham on sexual liberty and legal reform.” Lit: Literature Interpretation Theory 31(3): 203–221.

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Introduction “Dare to know!” was the rallying cry of the Western Enlightenment, as proclaimed by Kant, referencing Horace’s sapere aude!’, in his 1784 essay “Answering the Question: What is Enlightenment?”. Here he argued that “enlightenment is man’s emergence from his selfincurred immaturity. Immaturity is the inability to use one’s own understanding without the guidance of another” (2009). Thus the way to enlightenment consisted in having the courage to use one’s own powers of reason. Freedom of thought and expression have been considered essential constituents of Western democracies ever since their inception in the revolutions of the eighteenth century. Despite much soaring rhetoric extolling these ideals, however, the everyday public lives of most ordinary citizens in democratic nations were largely governed by the more traditional discursive norms of their local communities. Until well into the twentieth century, these provincial standards were seldom legally challenged, although contra conventional histories of free speech which imply that such issues were largely dormant in the period from the US Civil War to World War I, David N. Rabban (1997) persuasively argues that free speech controversies involving labour activists and sexual reformers, including organised efforts by the Free Speech League, were active and often vibrant; however, they took place outside of the judicial system. The communication and transportation innovations of the late nineteenth and early twentieth century fractured much of this insularity, creating what was referred to at the time as the “Great Society”: Heterogeneous, industrialised, international and interconnected. World War I, the frst total war, in which modern technologies of warfare released their lethal powers globally, undermined the faith of nineteenth-century intellectuals in the inevitability of progress. Those who dared to know and to express dissident political views quickly discovered the limits of democratic franchises for free expression. The major allied democracies launched global propaganda campaigns to silence dissent and advance their national agendas, and they also undertook surveillance to ensure conformity. Postal authorities censored the mail, newspapers were subjected to offcial or quasi-offcial censorship, and war-

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resisters, dissidents and others identifed as “enemies within” were frequently denied access to public fora, imprisoned or deported (Mock and Larson, 1939; Kennedy, 2004). The unprecedented death toll and sense of futility produced by the Great War largely extinguished the progressive social reformist energies of the pre-war era and cultivated disillusionment among many of the younger generation of intellectuals, authors and artists, who came to be known as the “lost generation”. In attempts to expose the hypocrisies of modern life and confront the prejudices of provincialism, this generation pushed at the boundaries of established sociocultural and aesthetic conventions. Journalists, academics and cultural entrepreneurs who shared their disaffection, joined and amplifed their critical chorus.

Liberating literature: Canaries in the metaphoric mines The challenges that these dissidents posed to established norms of cultural discourse contributed signifcantly to expanding the legal grounds for freedom of expression. The transatlantic battle over publication of James Joyce’s Ulysses exemplifed the diffculties that censors faced in enforcing their edicts in the more cosmopolitan postwar climate. Initially appearing in serialised form between 1918 and 1920 in a small New York literary magazine, Ulysses was charged with obscenity in 1920. The publishers were found guilty, fned and ordered to cease publication of the serialisation. Ulysses was subsequently published in 1922 in Paris where authorities were more vigilant in overseeing books in French than English-language publications since the latter were purchased primarily by tourists. Throughout the English-speaking world Ulysses was, however, almost immediately banned. This, in turn, elicited outrage among the modernist literati, including T.S. Eliot, Ernest Hemingway and Ezra Pound, who lauded Ulysses as a masterpiece. The ban was lifted in the US in 1933 and shortly thereafter in the United Kingdom. Although the Republic of Ireland had some of the strictest censorship in Europe, based on Roman Catholic doctrine, the book was not offcially banned there during the controversy because the Irish customs authorities never permitted its import. Endorsement of Ulysses by prominent authors and professors of literature attracted funding from wealthy patrons of the arts to support legal challenges to censorship. This established a strategy that would be successfully followed in later free-expression controversies. Challenging book censorship was nonetheless a risky business, both fnancially and legally. Following the principle outlined in Blackstone’s Commentaries on the Laws of England (1765–70), which was also adopted by the US Constitution, prior restraint was not generally permitted. In effect, a book had to be published, and its publisher prosecuted and convicted before it could be banned. Typically the publisher who was prosecuted owned the copyright. If another publisher wanted to challenge a ban, they had to purchase the copyright from the original publisher, which could be prohibitively expensive. The new publisher also had to develop a legal strategy that could negate the original conviction or cite changes in the law. Such legal battles sometimes took years to make their way through the courts. Few publishers were in a position to put principle before proft, although, in theory, university presses and other non-proft organisations were chartered to do so. Ernest Hemingway had frequent bouts with censors as he pushed the limits of literary permissibility in terms of language and sexuality, complaining that even his own publishers acted as censors. A Farewell to Arms (1929) was among his novels that caught the wrath of censors in Ireland, Italy and Boston, Massachusetts for its depictions of sexuality and war. Along with The Sun Also Rises (1926), it was later condemned in the Third Reich as decadent and set afame in Nazi book burnings (Baldassarro, 2011). 86

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It was, however, D.H. Lawrence’s Lady Chatterley’s Lover that played a decisive role in the liberation of sexually explicit twentieth-century literature. Lawrence published the book privately in Italy in 1928 and France in 1929 because British publishers had rejected the manuscript on the grounds that it was obscene. He died in 1930, so the book was never copyrighted. That made it a tantalising but risky property for publishers to exploit. For 30 years, unexpurgated versions of the book could not be sold or imported into English-speaking countries, and pirated copies were subject to confscation at the borders. The post-World War II economic boom in the United States transformed both the book business and the reading public. Mass marketing of inexpensive paperback books in venues beyond traditional bookstores along with rising levels of education substantially expanded all areas of the book business, ranging from the classics to comic books and pulp novels with bodice-ripping cover art. In 1952, an independently wealthy cultural entrepreneur, Barney Rosset, took over the assets of Grove Press, which had developed a niche market selling quality paperbacks in bookstores on or near college campuses. In 1954, Mark Schorer, a professor at the University of California at Berkeley, encouraged Rosset to publish the unexpurgated version of Lady Chatterley. Rosset reportedly did not like the book, but he was committed to extending the boundaries of literary freedom; furthermore, as an independent publisher, he did not have to answer to investors. Thus he was in a position to take on the First Amendment challenge that the book would pose. The Grove version was published in 1959 with a preface by poet and former Librarian of Congress Archibald MacLeish, an introduction by Schorer and endorsements by several prominent literary fgures. The book was seized by the government, and Rosset immediately sued the US Post Offce. Rosset and his lawyer, Charles Rembar, developed a strategy that focused on the precedents that the courts had already committed themselves to in obscenity cases: Their objective was to revise and further narrow the concept of obscenity. They succeeded in getting a New York district court to agree that Lady Chatterley was a serious work of literature and that it was not “pandering” – a charge frequently levied against pornographers. The Post Offce ban was lifted in July 1959, and by September the book was in second place on the New York Times bestseller list. The support of MacLeish and other eminent literary fgures had carried the day. In August 1960 Penguin Books published the frst unexpurgated version of Lady Chatterley in England. Legal proceedings began immediately and a trial was held at the Old Bailey in October and November. Until 1959, the standard for judging the acceptability of a publication in the UK was known as the “Hicklin test” (Green, 2009). Based on an 1868 case, Regina v. Hicklin, it provided a broad defnition of obscenity, namely: “Whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral infuences and into whose hands a publication of this sort may fall”. In England, under Hicklin, the shorthand proxy for the corruptible reader became a 14-year-old schoolgirl (Robertson, 2010). American courts also adopted the Hicklin Test in the Federal AntiObscenity Act of 1873 (popularly known as the “Comstock Act”) and in various state laws. Although several US decisions modifed the interpretation of the 1873 Act to take into consideration literary merit and community standards, the First Amendment implications of the Anti-Obscenity Act were not considered until 60 years later. Furthermore, the US Supreme Court did not defnitively reject the “most susceptible person” standard until Roth v. US 1957 (Green, 2009). In the British case, the attorney general, Sir Reginald Manningham-Buller, favoured the prosecution of Penguin after reading a few chapters of Lady Chatterley and conveyed 87

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that message directly to the Director of Public Prosecutions (DPP). According to Geoffrey Robertson (2010), a crucial factor in the decision to prosecute was that the low price of the book “put it within easy reach of women and the working classes. This, the DPP’s fles reveal, was what the upper-middle-class male lawyers and politicians of the time refused to tolerate”. Sir Allen Lane, chairman of Penguin, and his solicitor, Michael Rubinstein, recruited an unusually broad range of expert witnesses, including famous authors, professors, journalists, psychologists, politicians, two school teachers and four Anglican churchmen, including a bishop. The testimony of several of these can be found in the edited transcript of the trial (Rolph, 1990). Lane and Rubinstein crafted their argument around the preamble to a revised version of the Obscene Publications Act passed by parliament in 1959 at the urging of the Society of Authors, the preamble to which pledged “to provide for the protection of literature and to strengthen the law concerning pornography” (quoted in Robertson, 2010). This stipulated that an entire book if brought before the courts, had to be considered, not just the offending passages. While the new law retained the “tendency to deprave and corrupt” test from the 1868 Hicklin case, it now applied only to those likely to read the book – not 14-year-old schoolgirls, unless a book was targeted at the teenage market specifcally. Moreover, even if a jury found that a book did tend to “deprave and corrupt”, it could still acquit if it concluded that the volume was justifed, “in the interests of science, literature, art and learning or any other object of general concern” (quoted in ibid.). The Chatterley defence team sent a mailing to more than 300 writers, scholars and public fgures, the vast majority of whom expressed support for the publication of the Penguin edition, including Aldous Huxley, T.S. Eliot, Bertrand Russell, John Betjeman, Stephen Spender and Kingsley Amis. Prominent defence witnesses included Richard Hoggart, Raymond Williams, E.M. Forster, Rebecca West and Noel Annan. After deliberating for just three hours, the jury found Penguin not guilty. The verdict originally applied only to England and Wales, but was later extended to Scotland and Northern Ireland. Within a year, Penguin sold more than two million copies. According to Robertson (2010), of all the trials conducted through the centuries at the Old Bailey, “none has had such profound social or political consequences” as the Penguin Books victory: The verdict was a crucial step towards the freedom of the written word, at least for works of literary merit … The Chatterley trial marked the frst symbolic moral battle between the humanitarian force of English liberalism and the dead hand of those described by George Orwell as ‘the striped-trousered ones who rule,’ a battle joined in the 1960s on issues crucial to human rights, including the legalization of homosexuality and abortion, abolition of the death penalty and of theatre censorship, and reform of the divorce laws. In both America and England, further moves away from state paternalism would follow as publishers, emboldened by Grove and Penguin’s victories and tempted by the lucrative profits they returned, built on these precedents to press for freedom to publish works that could not be defended on their literary, artistic, scientifc, social or educational value. In the US the breakthrough came unexpectedly in 1964, when, on the same day, the Supreme Court reversed a Florida judgment against Grove and the conviction of an Ohio theatre owner for showing Louis Malle’s flm Les Amants (The Lovers), which had been deemed obscene by the state court (Menand, 2021). 88

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The Supreme Court review of the case, Jacobellis v. Ohio (1964), is remembered primarily for a remark by Justice Potter Stewart, who argued that although he could not defne hardcore pornography, “I know it when I see it, and the motion picture involved in this case is not that” (quoted in Gewirtz, 1996: 1024). Other Justices also struggled with defnitional matters. Furthermore, Justice William Brennan argued that it was anomalous to use local standards to render decisions on the First Amendment which applied to the nation at large, and Justices Hugo Black and William Douglas were free speech absolutists, so they opposed any constraints on expression. The Jacobellis decision did retain obscenity as a form of unprotected speech but the stalemate resulting from the justices’ inability to agree on a defnition created a near-absolutist free expression interregnum that US publishers eagerly exploited. During the liberalisation, even Fanny Hill, the frst book convicted of obscenity in the US in 1821, passed the Court’s review on the grounds of its “social importance”. And as Louis Menand argues: “You can say what you like about Lady Chatterley, but Fanny Hill just is pornography” (2021: 378, emphasis in the original). The local standards provisions remained and child pornography continued to be rigorously prosecuted, but book publishers and readers enjoyed unprecedented freedom in other respects. The British Chatterley verdict came later but was more proactive, carrying the seal of a jury of ordinary citizens and endorsement by experts from a broad range of felds. Censorship of the theatre was soon abandoned; flm became more daring (although the British Board of Film Censors [BBFC] remained very cautious) and even the BBC lost some of its starch. In 1966, under Pope Paul VI, the Roman Catholic Church discontinued its Index Librorum Prohibitorum (List of Prohibited Books), which had been in effect since 1559, although for the Vatican, this was apparently a practical administrative move motivated by the impossibility of surveilling the vast global output of the modern publishing industry. Even the Republic of Ireland had signifcantly relaxed enforcement of its stringent censorial regime by the century’s end as the Church’s tight control over Irish culture waned. Nonetheless, publication of Salman Rushdie’s The Satanic Verses in 1988 by Viking Penguin proved that theocratic censorial forces could still be aroused with great ferocity in the late twentieth century, and that Western democratic nations were not immune to their effects (Appignanesi and Maitland, 1989; Article 19, 1994). Rushdie, a Booker Prizewinning British novelist of Indian ethnicity who was born into a Muslim family, was accused of blasphemy and unbelief by Ayatollah Khomeini, Iran’s political and religious leader, who issued a fatwa calling upon the faithful to pursue and kill the author and anyone else involved in the book’s publication. A six-million-dollar reward was offered, and Rushdie was forced into hiding until 1998 when the Iranian government fnally lifted the fatwa. The book was banned in many countries and numerous shops selling the book were frebombed. Copies were publicly burned in the UK and elsewhere, and in 1989, a crowd estimated to be between 15,000 and 20,000 burned Rushdie in effgy in London’s Parliament Square. Its Norwegian publisher was shot and seriously injured, its Japanese translator stabbed to death and its Italian translator beaten up and stabbed. In Sivas, Turkey, in 1993, 35 people were killed in a fre when a Salafst mob stormed the hotel where the Turkish translator of the book was staying. Such violence had and continues to have a distinctly chilling effect (Malik, 2017). Many booksellers, such as Barnes and Noble in the US, ceased to stock the book, and publishers began to back off from publishing other works dealing with Muslims and Islam that might be considered controversial – for example, in 2007 Random House cancelled the publication 89

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of Sherry Jones’s The Jewel of Medina. It was then taken up in Britain by the independent publisher, Gibson Square, but on September 27, 2008 the London home of the publisher, Martin Rynja, was frebombed, following which the book’s publication was postponed. Such violence and threats of violence were rightly described by Rushdie as “censorship by fear” (Andrews, 2009), and, such censorship threatens to persist, since, in spite of the lifting of the fatwa, Rushdie was nearly stabbed to death on a public stage in Chautauqua, New York, in August 2022. Literary struggles for free expression have generally been considered important to larger political struggles for free expression. Regarded as canaries in metaphoric literary mines, books being subjected to censorship has been viewed as a harbinger of impending danger as affrmed by Heinrich Heine’s often-invoked warning: “Where they have burned books, they will end up burning people” (quoted in Avineri, 2017: 1). But while all too often in human history this proved to be true, Siân Heap (2017) is nevertheless correct in pointing out that linkages among book burning, censorship and governments are more complex than Heine’s reductive formula suggests. All censors are not necessarily resolute enemies of liberty.

The paradox of free expression: Intolerance of intolerance Every enduring community establishes certain limits of the permissible based upon its most cherished values, whether sacred or secular. While contemporary secular societies valorise free expression, they still draw various boundaries. Following World War II, many European nations introduced legal measures intended to preserve free expression by preventing recurrences of Nazism and Fascism. In 1949, for example, German law declared “human dignity as an utmost value” and therefore prohibited political parties seeking to undermine the free democratic order (ibid.: 10). In that instance, anti-Semitism and Holocaust denial were proscribed. Such strictures recognise the basic paradox of free expression: Its reliance on intolerance of intolerance. As articulated by Karl Popper in 1945: Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed and tolerance with them. (2012: 581) Every democratic franchise for free expression includes a number of exceptions. Defamatory speech is generally outlawed, although defnitions and levels of enforcement vary. National security is an elastic category, with defnitions expanding in times of crisis. Offcial censorship is typically imposed during wartime, and the major democracies have security forces that engage in undercover operations and surveillance activities that violate those countries’ ideological commitments to free expression and human rights. Such efforts, whether domestic or international in scope, are usually rationalised as defensive measures, designed to stave off forces hostile to democracy and free expression. Although all too frequently publicly clothed in Orwellian double-speak, they do often constitute implicit embraces of the intolerance of intolerance paradox. As private corporations grew in size and global reach, they increasingly exercised power within democracies, both directly and indirectly. In some cases, the defensive postures of democratic governments have been mobilised in order to defend anti-democratic business 90

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interests against the exercise of free expression as, for example, when in 1954 the US used a CIA undercover operation to overthrew Guatemala’s democratically elected president, Jacobo Árbenz, in order to protect the interests of the United Fruit Company (Schlesinger and Kinzer, 2005). The Cold War provided broad rationales for routine monitoring of political speech, particularly on the part of those considered potentially subversive, while at the same time court decisions in the UK and US were progressively liberating free expression in literature, arts and entertainment (Anderson, 2021). For example, anti-colonialist movements, civil rights struggles, anti-war and student movements of the 1960s all attracted extensive surveillance by democratic governments. A recent World Bank working paper describes the kinds of combined selective control exercised by both public and private sources in democracies as adopting a “curatorial approach” to censorship (Corduneanu-Huci and Hamilton, 2018).

The future isn’t what it used to be: Political expression During the interwar period, critical scholarship on propaganda and public opinion formation fourished, and journalistic reform efforts gained traction. In the United States, for example, academic freedom – a concept borrowed from the German university system – achieved formal recognition. Liberal interpretations of free expression gained infuence in the Supreme Court as the once-dissident views of Justices Oliver Wendell Holmes and Louis Brandeis achieved broad acceptance. Brandeis famously claimed in Whitney v. California in 1927 that: To courageous, self-reliant men, with confdence in the power of free and fearless reasoning applied through the process of popular government, no danger fowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and the fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. (Quoted in Sunstein, 1995: 27) Meanwhile, from a rather different perspective, Holmes expressed faith in the “free trade in ideas” and argued that “the best test of truth is the power of thought to get itself accepted in the competition of the market” (quoted in ibid.: 24). Together, these views formed the foundation for what would become known as the “absolutist” view of freedom of expression (Fish, 2019). In the American South, however, Jim Crow segregation denied basic human and legal rights to African-Americans until the passage of the Civil Rights Act of 1964. For many, full realisation of those rights still remains elusive. The Russian Revolution, the rise of Fascism and Nazism contracted or extinguished freedom of expression in much of Europe. Lenin imposed censorship as a “temporary measure” during the October 1917 revolution, which became permanent under his New Economic Policy in 1922. Known as Glavlit, it continued to operate until Mikhail Gorbachev’s Press Law abolished offcial censorship in 1990. Nazism extinguished the free expression of the Weimar Republic and unleashed the horrors of the Holocaust. World War II repeated and multiplied the slaughter wrought by its precursor. The war also refned and amplifed forms of global censorship and propaganda. The West’s tenuous wartime alliance with the Soviet Union shattered at the war’s end, dividing East and West and inaugurating the Cold War in 91

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which Western propaganda framed its sphere of infuence as the “Free World” and nations under Soviet dominance as the “Captive World” (an appellation that would be extended to include China after 1949). The Cold War also produced wartime chills within democratic nations, where political dissonance was still met with limited tolerance. For example, in the United States, the House Committee on Un-American Activities, which had originally been founded in 1938, investigated alleged disloyalty or subversion among citizens and engaged in red-baiting, blacklisting in the flm industry, requiring faculty at state universities to sign loyalty oaths, and more. These repressive efforts ran counter to the thrust of US international public diplomacy, which emphasised freedom as America’s defning value. It also exposed the fragility of the new American postwar cosmopolitanism that emerged in New York and Hollywood during the period when these capitalist creative centres attracted prominent European intellectuals, writers and artists displaced by World War II. The Cold War ended abruptly in 1989 as peaceful revolutions engulfed Eastern Europe. Variously characterised as the “springtime of nations” and even the “end of history”, the transformation seemed to mark an epochal victory for freedom of expression. Václav Havel, whose plays were banned under Communism, became president of Czechoslovakia and later of the Czech Republic. In the 1990s Russia also moved toward liberalisation. Nobel laureate and Soviet dissident Aleksandr Solzhenitsyn, who was expelled from the USSR and stripped of his citizenship in 1974, had his citizenship restored; he returned to Russia in 1994 after living in the US for almost two decades. In 1993, Article 29 of the Constitution of the Russian Federation established freedom of ideas and expression and freedom of the mass media, and in 1998, it ratifed freedom of expression under the European Convention of Human Rights. The early 1990s were a period of unparalleled hope for free expression advocates. However, commemorating the thirtieth anniversary of those halcyon days, Paul Betts (2019) reported: “These days 1989 isn’t what it used to be”. Hope has been replaced by disappointment at the resurgence of xenophobia, political extremism and repression. The postwar rise of independence movements in former colonial territories gave birth to new nations: Their struggles for independence usually embraced the rhetoric of democracy. Article 19 of the United Nations 1948 Universal Declaration of Human Rights affrmed that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. But while this franchise has remained largely aspirational in many parts of the world, it does provide a global platform for advancing tolerance and monitoring abridgments of free expression.

Socially structured silences: Dissonance at the margins Many of the twentieth-century advances of freedom of expression were won by and largely limited to fnancial and cultural elites: Authors, intellectuals, academics, journalists, publishers, media companies and their agents and gatekeepers, and so on. Information and ideas intended for elite audiences have always had wider latitude than messaging intended for the general public (Corduneanu-Huci and Hamilton, 2018). Conversely, media produced by marginalised and dissident groups have often been ignored or rejected by mainstream publishers and media producers whose profts relied on economies of scale. The political and creative efforts of such groups, who “dared to know” and to use that knowledge to challenge established conventions and structures of power, were fre92

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quently subjected to surveillance and/or suppression by the authorities. And the information and ideas they produced were frequently rejected by risk-aversive publishers and distributors. During the second half of the century, activists in organisations concerned with antiand post-colonialism, civil rights, peace, feminism and human rights exposed these systemic biases, which, with few exceptions, restricted full entitlement to free expression to white males in the affuent democratic nations of the West. As Amartya Sen (2010) points out, having formal rights without the capabilities (that is, the resources) necessary to exercise those rights is meaningless. To be published and heard, writers like Richard Wright, James Baldwin, Ralph Ellison, Aimé Césaire and Frantz Fanon had to create aesthetics and dialects of resistance – incorporating what W.E.B. DuBois ([1903] 1994)called “double-consciousness” – which would resonate across colour lines. Social-class disadvantages have also posed steep barriers to developing the educational and networking capabilities necessary to enter elite literary and scholarly circles. Although in many nations throughout the world women gained suffrage in the twentieth century, their struggles for the “room of one’s own” that Virginia Woolf desired continued. While women intellectuals, most famously Mary Wollstonecraft and Catharine Macaulay, were part of the Enlightenment movement, the democratic revolutions that it inspired generally confned them to the private sphere of home and family. While some nevertheless played active roles in great public events, few made it into the history books. Even Woolf’s canonic status as a literary genius was fully secured only after her suicide. For most of the century, mainstream media publicly lauded women for their beauty, sex appeal or nurturing qualities as wives and mothers. In 1998, The New York Times published a list of the 100 best English-language novels of the century, as compiled by The Modern Library, most of which had also been reviewed by the paper. Joyce, Hemingway and Lawrence have multiple entries, and Rushdie is listed for The Satanic Verses. Just six non-whites and nine women are included. Posterity’s judgment may ultimately differ, but the Times list does indicate what the Anglo-American literary establishment valued at the century’s end. It is not surprising, then, that in 1970, when Kate Millet, fully armed with favoured race, class and academic credentials, applied her radical feminist critical literary skills to an analysis of the sexual politics of D.H. Lawrence and other authors who valorised male sexuality as dominance, she faced a tornado of resistance from the literary establishment (Doherty, 2016; Sweetman, 2021). Revisiting Millet’s Sexual Politics and the long term legacy of the Chatterley decision, Rosita Sweetman (2021) contends that the “misogyny hiding beneath ‘high literary style’” of Lawrence and others who were liberated by the Chatterley decision, “confated male violence and sexual prowess and laid the groundwork for modern pornography” which eroticises violence against women. Indeed, she goes so far as to assert that “modern pornography would have appalled Lawrence”. Six decades ago, when the bans on Chatterley and Fanny Hill were lifted, no one could have imagined that 14-yearold schoolgirls and boys would one day have video-enabled mobile phones in their pockets, which would provide them with 24/7 internet access to hardcore pornography. Or, that parents – just like the Vatican – would fnd it beyond their capacity to monitor and deny access. Just as Orwell and Robertson sought to expand the limits of cultural permission beyond the “striped-trousered ones who rule” or what Lawrence called the “grey elderly ones” (quoted in Robertson, 2010), politically and racially marginalised groups struggled to access the ‘capabilities’ necessary to realise the rights of free expression guaranteed to them in theory but all too often denied in practice.

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Conclusion If the twentieth century has lessons to offer, it is that freedom of expression is fragile. It requires constant defence. It is never absolute, and seldom equitably distributed. It can have unintended consequences that require critique and correction. It is rooted in a dangerous paradox: It requires both tolerance or intolerance, which, if not exercised with extreme caution, wisdom and humility, can backfre and consume it. Freedom of expression is a requisite of democracy because democracy is based on the consent of the people. To consent, the people must be informed. They must “dare to know”. Free expression is a means, not an end. The end is knowing: Discovering the truth or truths that enable informed consent. Truth itself is a contested concept, negotiated in secular societies by the norms of science and law. Censorship and propaganda are the canaries in the mines of democracy. They require close monitoring.

References ACLU Ohio. (1964) Jacobellis v. Ohio 378 U.S. 184. Retrieved from https://www.acluohio.org/en/ cases/jacobellis-v-ohio-378-us-184-1964 Anderson, S. (2021) The Quiet Americans: Four CIA Spies at the Dawn of the Cold War: A Tragedy in Three Acts (New York: Anchor). Andrews, A. (2009) “How one book ignited a cultural war.” Guardian, 10 January. Retrieved from https://www.theguardian.com/books/2009/jan/11/salman-rushdie-satanic-verses Appignanesi, L. and Maitland, S. (1989) The Rushdie File (London: Fourth Estate). Article 19. (1994) Fact, Fiction and the Fatwa: 2,000 Days of Censorship (London: Article 19). Avineri, S. (2017) “Where they have burned books, they will end up burning people.” Jewish Review of Books, Fall. Retrieved from https://jewishreviewofbooks.com/articles/2788/burned-books-will -end-burning-people/ Baldaassarro, R. W. (2011) “Ernest Hemingway.” Banned Books Awareness, 6 November. Retrieved from http://bbark.deepforestproductions.com/column/2011/11/06/banned-books-awareness -ernest-hemingway/ Betts, P. (2019) “1989 at thirty: A recast legacy.” Past and Present, 244(1), August, 271–305. Corduneanu, C. and Hamilton, A. (2018) Selective Control: The Political Economy of Censorship, World Bank Group, working paper 8556, August. Retrieved from https://documents1.worldbank.org/ curated/en/329391534428575999/pdf/WPS8556.pdf Doherty, M. (2016) “What Kate did.” The New Republic, 23 March. Retrieved from https://newrepublic.com/article/131897/kate-millett-sexual-politics DuBois, W. E. B. ([1903] 1994) The Souls of Black Folks (New York: Dover). Fish, S. (2019) The First (New York: Simon and Schuster). Gewirtz, P. (1996) “On ‘I know it when I see it’.” The Yale Law Journal, 105(4), 1023–1047. Retrieved from https://openyls.law.yale.edu/bitstream/handle/20.500.13051/8935/38_105YaleLJ1023 _January1996_.pdf?sequence=2&isAllowed=y Green, W. C. (2009) “Hicklin test.” The First Amendment Encyclopedia, The Free Speech Center. Retrieved from https://www.mtsu.edu/frst-amendment/article/969/hicklin-test#:~:text=The %20Hicklin%20Test%20permitted%20a,susceptible%2C%20usually%20youthful%2C%20readers Heap, S. (2017) “Twisted into myth: Book burning as a weapon of fascism and anti-fascism, 1933– 1946.” The Journal of Publishing Culture, 7, April, 1–14. Kant, I. (2009) An Answer to the Question: What Is Enlightenment? (London: Penguin Books). Kennedy, D. M. (2004) Over There (New York: Oxford University Press). Malik, K. (2017) From Fatwa to Jihad: How the World Changed from The Satanic Verses to Charlie Hebdo (London: Atlantic Books). Menand, L. (2021) The Free World: Art and Thought in the Cold War (New York: Farrar, Straus and Giroux). Millet, K. (1970) Sexual Politics (New York: Doubleday).

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Freedom of expression in the twentieth century Mock, J. R. and Larson, C. (1939) Words That Won the War: The Story of the Committee on Public Information 1917–1919 (Princeton, NJ: Princeton University Press). New York Times (1998) “Modern library choices.” 20 July. Retrieved from https://archive.nytimes .com/www.nytimes.com/library/books/072098best-novels-list.html#25 Popper, K. ([1945] 2012) The Open Society and Its Enemies (London: Routledge). Rabban, D. M. (1997) Free Speech in Its Forgotten Years, 1870–1920 (Cambridge: Cambridge University Press). Robertson, G. (2010) “The trial of Lady Chatterley’s Lover.” Guardian, 22 October. Retrieved from https://www.theguardian.com/books/2010/oct/22/dh-lawrence-lady-chatterley-trial Rolph, C. H. (ed.) (1990) The Trial of Lady Chatterley. With a foreword by Geoffrey Robertson (London: Penguin). Schlesinger, S. and Kinzer, S. (2005) Bitter Fruit: The Story of the American Coup in Guatemala (Cambridge, MA: Harvard University Press). Sen, A. (2010) The Idea of Justice (London: Penguin). Sunstein, C. R. (1995) Democracy and the Problem of Free Speech (New York: The Free Press). Sweetman, R. (2021) “Priest of the phallus.” Dublin Review of Books, 135, July. Retrieved from https:// drb.ie/articles/priest-of-the-phallus/

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9 PHILOSOPHIES OF CENSORSHIP AND CONTROL Eric Barendt

Introduction Governments, whether authoritarian or democratic, are usually concerned to control criticism in the media of their conduct of affairs because it weakens public support and may eventually lead to their downfall. They attempt to regulate freedom of expression and press freedom either by systems of licensing – censorship in the strict sense – or through the use of the criminal law. So they regulate, and even suppress, speech for reasons of self-interest; indeed, a general suspicion of government in this context adds to the philosophical arguments for freedom of expression considered in a number of other chapters in this volume, providing a further reason why the freedom should be guaranteed by law (Schauer, 1982: 80–85). However, arguments of principle, which can sometimes be dignifed as arguments of political philosophy, have been put forward to justify rigorous control of freedom of expression. They were advanced by Plato in the Republic and the Laws, written in the fourth century BC; the case he made in these books for banishing artists from his ideal state, though often characterised as totalitarian, is still vigorously debated by philosophers today. Similar arguments were in effect adopted by the Church in Medieval Europe, and then in turn deployed by secular governments from the sixteenth and seventeenth centuries, when they used licensing systems to control the circulation of books and pamphlets. Although the religious basis for censorship was no longer generally shared, the practice continued until the liberalisation of press laws in many European countries in the nineteenth century. By then the liberal case for freedom of expression had become widely accepted. But the arguments of principle for some control of the freedom are far from negligible, and even now are perhaps refected in some modern controls (see the fourth and ffth sections below).

Plato’s arguments “Why Plato Banished the Artists” is the subtitle of a famous lecture given by the distinguished philosopher and novelist Iris Murdoch in Oxford in 1976, subsequently published as a short book the following year. In the Republic, Plato advocated banning poets from the

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ideal state insofar as they portrayed bad behaviour by the gods; further, it was wrong for gods to be depicted, as had Homer in the Iliad, as laughing at human folly (1955: 389a, 607–8). In Plato’s last work, the Laws, he outlined which types of literature might be allowed and which censored (1970: 656–57, 797–801). He also advocated the proscription of teaching atheism and the indifference of the gods to creation, even supporting the death penalty for atheists who would not repent their unbelief after a period of education (ibid.: Book X). What could justify these measures that have been frequently and understandably characterised as totalitarian (Crossman, 1959; Popper, 1962)? Plato’s argument is best seen in the context of his overall moral and political philosophy. In his view what is right and good can be known by those with skill and judgment, the philosopher-kings of the ideal state described in the Republic or the Guardians in the Laws who ruled a hypothetical state established in Crete. Knowing what was good for the right conduct and happiness of their citizens, rulers are entitled to prevent the moral damage done to them, and particularly to young people when they read and watch corrupt poetry and plays, which, for example, portrayed the gods as wicked or as indifferent to human welfare. Even comedy should be subject to strict censorship to ensure it did not abuse or ridicule people or encourage buffoonery (ibid.: 816–18, 935–36). Consequently the Minister of Education was the most important offcial in the hypothetical Cretan state discussed by Plato (ibid.: 765–66); it was his duty to ensure that children were brought up with improving literature and were protected against innovation and change which necessarily interfered with traditional patterns of behaviour. So censorship and control were justifed to ensure moral education and safeguard the welfare of all citizens. At root, Plato’s objections to poetry and the other arts can be characterised as religious: The arts inevitably distort and trivialise spiritual truths and values (Murdoch, 1977: 65–67). They falsely present these truths as easy to access, and further, they invest worldly success and fortune with false glamour. Another argument is that the arts may endanger, rather than promote, social stability; Plato disliked literature and art challenging the traditional beliefs and right conduct which the state was entitled to promote and protect (Levinson, 1953: 547–61; Murdoch, 1977: 62). In explaining Plato it should be emphasised that he had in mind an ideal state (or a hypothetical one established in Crete). John Milton argued that the licensing system recommended by Plato was to be “set down in his fancied republic” (1958: 162) and had not been implemented in any actual state. The ideal state was ruled by philosophers uniquely able to determine moral Good, a matter of objective judgment (Bambrough, 1967: 8–9). In the Laws the Guardians’ rule was subject to a complex system of checks and balances to ensure that they did not abuse their political authority. Perhaps of more relevance to the discussion in this chapter is that the laws in Plato’s fctitious state were to be preceded by preambles which would explain why the rule was introduced and provide citizens with reasons for compliance. It is perhaps an early prefguring of the Rule of Law, an important feature of modern democratic states. Further, it suggests some acceptance of citizens’ capacity to reason, though it stops well short of the premise of human rationality which underlies modern arguments for freedom of expression, in particular the argument from autonomy considered in Chapter 7. It would be wrong to deny that Plato’s arguments are essentially authoritarian, depriving individuals of any freedom to express and consider rival views on moral and political questions. But it would surely be equally wrong to dismiss his concern with social cohesion and stability. Modern liberal democracies, at least in Europe, regulate, or even proscribe, speech which stirs up hatred against members of vulnerable minorities or which advocates discrimi97

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nation against them. Although these bans can be justifed as necessary for preserving public order in the long term, they are also defended as ensuring cohesion and harmony between different groups and as assuring vulnerable racial and religious minorities of their place in society (Waldron, 2012). These arguments are perhaps not radically different from those advanced by Plato.

Censorship in medieval and Renaissance Europe In medieval Europe, as in earlier periods, the Church was often troubled by what it considered heretical teaching, to which it reacted by persecution and the burning of its leaders. In England this led to the enactment of a statute in 1401, De Haeretico Comburendo, directed at the Lollard movement, which authorised the burning of heretics; a Lollard priest was sent in that year to the stake at Smithfeld (Levy, 1995: 77–80; Leyser, 1997: 196–99). England was adopting a long-established practice on the European continent (Holland, 2019: 236–39, 241–47, 280–84). The development of the printing press in the ffteenth century led to control of the book trade to ensure that heretical works were not published or circulated. In particular, translations of the Bible into vernacular languages were forbidden, because they enabled literate laymen to make up their own minds on the meaning of scripture rather than relying on Church teaching of orthodox belief. So the distribution in England of William Tyndale’s translation was banned during the reign of Henry VIII, while Tyndale himself was summarily executed by the Catholic Emperor Charles V in 1536 in the Hapsburg Netherlands, to which he had fed from England (Fellion and Inglis, 2017 30–33). In 1559 Pope Paul IV issued the Index Librorum Prohibitorum – the List of Prohibited Books – by means of which the Church attempted to ban the publication and circulation of literature which it judged heretical and as contrary to Catholic teaching on faith and morals. Faithful Catholics were required not to read listed material. The censorship scheme was liberalised in the eighteenth century but was only formally abolished as recently as 1966 by Pope Paul VI. It had a considerable impact on printing freedom in Venice and elsewhere in Europe where the Catholic Church was dominant, though less so on imports of books from Germany, where the intellectual climate was relatively free after the challenge by Luther to Church authority (Grendler, 1975: 54, 57–59; Grendler, 1988: 46–47). Among the listed works were some by great philosophers such as Descartes, Spinoza, Hume and Kant, by the French writers Montaigne, Diderot, Voltaire and Hugo, the works of Copernicus and Galileo, and, rather oddly, Pamela by the English novelist Samuel Richardson. The justifcation for the Index, as stated by the Council of Trent, was that the Church alone was qualifed to interpret the Scriptures and to determine what Catholics should believe; they were not entitled to intellectual freedom on matters of faith and morality The principle established by the Council of Trent was applied strictly, and most famously, in the Church’s treatment of Galileo in 1632–33. He was summoned to Rome by Pope Urban VIII to defend his apparent support in the Dialogue Concerning the Two Chief World Systems for the Copernican heliocentric explanation of the universe. Galileo’s book presented both Copernicus’s teaching and the traditional Church doctrine that the earth is the centre of the universe, but the former was treated more sympathetically. The Roman Inquisition found Galileo guilty as “vehemently suspected of heresy” (although he was not formally charged with the offence) in that he held and believed a false doctrine contrary to Scripture. Another interpretation of the trial is that Galileo was convicted for violating a precept issued in 1616 not to defend Copernican teaching (Mayer, 2015: 205–12, 219–23). He was sen98

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tenced to imprisonment, later commuted to house arrest, distribution of the Dialogue was banned and publication of his other works forbidden (Dixon, 2008: 27–30). The emergence of Protestant churches during the Reformation made matters more diffcult for Catholic authorities. The Church could enforce the Index in Catholic countries, at least if it was assisted by their governments. But in the Protestant states of Germany, in the Netherlands, and in England during the reign of Elizabeth I, censorship powers were exercised by secular authorities, which in effect governed the new churches there (Grendler, 1988: 44, 48). Protestant rulers often considered that a challenge to the prevailing religious principles – whether Lutheran, Calvinist or Anglican – undermined their temporal authority as well. It is uncertain whether Protestant censorship was less severe than that of the Catholic Church, but what is clear is that it was limited to the boundaries of each particular state and made no universal claims to determine what could be published and read. The fusion of secular and religious censorship power is clearly demonstrated by reference to the control of literature in Elizabethan and Jacobean England. In 1559 shortly after her accession to the throne, Elizabeth I set up the High Commission to protect the country against the publication of seditious and heretical opinion. Further, a licensing system was instituted under which the Archbishop of Canterbury and the Bishop of London (exercising in practice the Commission’s authority) were able to control what might be published (Clegg, 1997, 36–40). Towards the end of Elizabeth’s reign, the bishops ordered the Stationers’ Company to tighten its control over the printing trade and to confscate particular satirical and seditious works: The justifcation for the order was the defence of the Crown’s civil authority against treason and sedition (ibid.: 215-16). Similarly James I ordered books to be burnt because he feared challenges to his authority (Clegg, 2001: 174–5, 183). Indeed, arguably the common law offence of sedition – discussed in the next section of this chapter – invests secular government with the same authority which the Catholic Church had claimed in Medieval and Renaissance Europe. At different periods and in particular jurisdictions, the Church and states justifed their control of freedom of expression with the argument that they alone were entitled to determine the truth of religious doctrine or of political opinion and the limits of acceptable discussion. Crude political motives were combined with claims to a monopoly of intellectual authority.

Press control in England from the eighteenth century Censorship of literature through licensing systems continued in England throughout the seventeenth century, despite the famous protest against it in 1644 by John Milton (1958) in Areopagitica. However, Parliament failed to renew the annual Licensing Act in 1695, so from that time there has been no formal system of prior restraint on press freedom in English law, in contrast, for example, to the position in France, where censorship existed formally until 1881. In the eighteenth and nineteenth centuries, control of the press was exercised through prosecutions for publications which infringed the criminal law. The principal offences were those of seditious, blasphemous and obscene libels. These were all common law offences, though their scope was sometimes clarifed by statute, notably by the Blasphemy Act 1698 and the Obscene Publications Act 1857. A seditious libel was broadly defned as material published with intent to bring the Crown, Parliament or government into contempt, to promote reform otherwise than by lawful means, and to excite feelings of hostility between different groups of society. It was a blasphemous libel to deny the existence of God or the 99

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divinity of Christ, or to oppose the teachings of the Church of England. The offence of obscenity was framed to prevent the public from being depraved and corrupted by reading or looking at sexually explicit books, magazines or pictorial material. Prosecutions for seditious libel, the most important of these limits on press freedom, were brought, or contemplated, by governments in order to deal with a number of apprehended dangers. At the beginning of the eighteenth century there was periodically fear of a Jacobite rebellion against the recently established Hanoverian dynasty, while from the 1770s support for the American Revolution and from 1789 defence of the French Revolution and the overthrow of the Bourbon monarchy were regarded as dangerous (Thomas, 1969: 34–35, Chapter 6). A well-known case is that of Thomas Paine, who in 1792 was convicted of sedition for The Rights of Man advocating non-monarchical government and supporting the principles of the revolution in France. Prosecutions for seditious libel were particularly common during the Napoleonic wars and in the decade afterwards when governments felt vulnerable to increasing challenges to their authority from agitators which led to civil unrest (Harling, 2001: 101, 116–18). But the use of a charge of sedition declined during the second half of the nineteenth century. Court decisions held the prosecution had to prove intent on the part of radical speakers or writers to foment violence or disorder; it was not enough to urge reform by peaceful means. While during the Tudor period and early seventeenth century control of heretical writing had been exercised by the monarch and Church authorities, blasphemy became a matter for the ordinary courts from the 1670s. In the leading case, Taylor (1676), it was held that a public rejection of God and the teaching of the Church of England was a crime against the state, as it necessarily endangered public order and peace. The monarch was Supreme Governor of the established Church which had in effect become part of the structure of civic governance. Prosecutions for the offence were still brought in respect of Deist and atheist publications during the frst half of the nineteenth century, as Mill protested in his essay On Liberty published in 1859 (see Chapter 6 of this volume). But they declined in the later part of the Victorian period as the courts emphasised that the offence was committed only in the case of a scurrilous and intemperate attack on Christian belief. The offences of seditious and blasphemous libel have recently been abolished by statute. But they have been replaced, and in some respects their impact on freedom of expression extended, by the modern offences of incitement to stir up racial or religious hatred. A philosophical argument for control of press freedom (and media freedom in general) should still be made to justify their existence. The common law of obscene libel rose to prominence during the eighteenth century, and still more in the following, as literacy spread and there was a rapid rise in the provision of sexually explicit books and magazines to meet a rising demand. Societies were formed to stop the spread of this material and to preserve public decorum and good manners (Thomas, 1969: Chapters 7, 9 and 11). Obscenity law was signifcantly liberalised by the Obscene Publications Act 1959 to protect freedom of literary and artistic expression. However, prosecutions are still occasionally brought under its provisions, and the statute has been supplemented by other laws to stop the display of pornographic material. In addition to these limits on freedom of expression, mention should be made of the offence of criminal libel, now abolished, which was committed by a defamatory publication tending to bring the person concerned into hatred, ridicule or contempt. After reform of the law in 1843, a publisher had a defence of truth; initially it was available only if he could also show that publication was for the public beneft. The truth argument for freedom of 100

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expression was therefore given qualifed recognition. A prosecution for criminal libel was successfully brought by the Duke of Wellington when Prime Minister against an ultra-Tory newspaper for its savage attack on him for introducing Catholic emancipation; but it was a Pyrrhic victory for the verdict led to yet more heavy criticism. From the 1830s, use of a charge of criminal libel rapidly declined. It became much more usual to bring civil proceedings for defamation; the prospect of an award of damages could be a more severe deterrent to media freedom than that of the fne which would follow a criminal conviction. Civil actions for defamation still represent a signifcant fetter on the freedom of the media to discuss the conduct of political affairs, though less so now after the reforms in the Defamation Act 2013: Provisions in this legislation have extended the scope of defences of truth, the expression of honest opinion and the privilege to make statements, the publication of which was reasonably believed to be in the public interest.

Mill and Stephen on liberty of discussion The preceding section has provided the background and contemporary context for the lively disagreement between John Stuart Mill and James Fitzjames Stephen over whether limits might appropriately be imposed on the liberty of thought and discussion. In Chapter 2 of On Liberty, Mill argued for freedom of expression, irrespective of whether the proposition expressed was true or false. His argument, more fully considered in Chapter 6 of this book, was that it was dangerous to control the dissemination of propositions which might be true because that would inhibit the development of knowledge and social progress; further, any suppression of (probably) false opinions rested on an “assumption of infallibility”, that is the assumption that the accepted beliefs could not possibly be wrong. Neither law nor the disapproval of public opinion should inhibit liberty of discussion, except in circumstances where imminent violence was feared. The strength and scope of Mill’s argument has been vigorously debated, as well as its application to modern limits on media freedom (Schauer, 1982: 19–30; Barendt, 2007: 7–13). Only four years after the publication of Mill’s essay in 1859, its themes were contested by Stephen in Liberty, Equality, and Fraternity. His arguments are both less well-known and much less widely shared than Mill’s thesis, but it remains an impressive statement of the conservative case: Government is entitled to protect what it reasonably considers true religious belief and right moral standards. Further, it may in some situations use the force of legislation to stop the dissemination of what it considers false beliefs and immoral standards. Stephen made a number of points critical of Mill’s principle of liberty of discussion. In particular, most people accept moral truths on the basis of their education and experience without full discussion of their veracity; moreover, open discussion would not change the minds of “an enormous mass of bad and indifferent people” (1967: 72, 106–7). Moreover, limits can rightly be imposed on the liberty without reference to a proposition’s truth or falsity, for example, on public order grounds or to provide social assurance to the targets of racist speech. Stephen was wholly unimpressed by the “infallibility argument”; we can often be confdent in the truth of our beliefs without others being at liberty to challenge them (ibid.: 75–79). Stephen was also unconvinced by Mill’s general liberty principle (1991: Chapter 1) under which a society may constrain individual freedom only for its own self-protection or to stop harm to particular individuals. It followed, in Mill’s view, that it is wrong to act simply to preserve moral standards. Stephen, in contrast, argued that coercion – through the force of 101

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law – may be rightly used to establish and maintain religion and morality or to improve the forms of government (1967: 61–66, 87). As he put it: “Parliamentary government is simply a mild and disguised form of compulsion” (ibid.: 70). Legislators should act as good parents do to their children, educating the public in the observance of moral standards (ibid.: 87–101). This conviction had pervaded early Christian legislation, as the account in the third and fourth sections of this chapter has explained, and Stephen argued that would be dangerous to follow Mill and depart from it. The implications of these views are disturbing for liberal-minded opinion, as they would seem to justify, for example, strict enforcement of blasphemy and obscenity laws to the detriment of freedom of expression. But Stephen did not support blasphemy laws, because he considered they were unlikely to achieve their object and were moreover an excessive means of protecting sound religious belief (ibid.: 100–103). In every case the wisdom of legal intervention should be determined on utilitarian grounds, not on the basis of the abstract principle of liberty formulated by Mill. While it might be ill-advised to use the law, Stephen had no objection to the voicing of public opinion to preserve moral standards and pressure dissenters to comply with them. Despite these qualifcations, Stephen’s positive case for constraints on liberty is generally thought unpersuasive. Certainly, liberals consider that Mill has much the better of the argument. One or two points should be made, however, to question this conclusion. First, Mill’s liberty principles, particularly his defence of full liberty of thought and discussion, rest perhaps on too optimistic a view of the capacity of most people rationally to refect on political and moral argument. Indeed, Stephen himself thought that Mill took too favourable a view of human nature (ibid.: 81). Unrestrained discussion should lead to better conclusions at a university seminar, but might not do so in an election campaign. Constraints on media freedom may sometimes be justifed on the ground that there is a real danger that readers and viewers may be unable to assess arguments made to them and so might reach the wrong conclusions. This concern lies behind, for example, the regulation of misleading advertising, and contempt of court law which bans media publicity creating a substantial risk of serious prejudice to the fairness of legal proceedings. Secondly, Stephen’s views were expressed in late Victorian England when there was uniformity of conventional religious belief and general acceptance of moral standards of sexual conduct. His views appear disturbing because society does not now share common religious beliefs or moral standards on some matters – for example, abortion or homosexual conduct. But on other issues society does take a moral position, which is widely, if not perhaps universally shared. For example, it is regarded as wrong to express views intended or likely to stir up racial or religious hatred, or hatred on the grounds of the target’s sexual orientation, and the law intervenes to penalise such expression. But this law would be precluded if we accepted Mill’s position on liberty of discussion. So Stephen’s arguments should not be ignored: His conservative case is not only supported by the experience of history but is refected in instances of modern regulation. The philosophical arguments for control of freedom of expression may not have changed; but they are now applied in quite different ways (Sedley 2011: 396–401).

Recent arguments The controversy discussed in the preceding section was revived more recently in the debate between Herbert Hart (1963) and Patrick Devlin (1965). The latter, a Law Lord, argued in 102

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a lecture given in 1959 that no sharp line could, or should, be drawn between those moral matters in which it was proper for the law to intervene and those which were no part of the law’s business. Hart, the Professor of Jurisprudence at Oxford, replied that there were some issues – for instance, homosexual conduct – which should be regarded as purely private, where any legal intervention would have signifcant repercussions for civil liberties. The debate was conducted in the context of recommendations to liberalise the law concerning homosexual relations and prostitution, but it also had clear repercussions for freedom of expression. In fact, Devlin’s argument is stronger in that context than in that of private sexual conduct, because expression is essentially “other-regarding”, in that it is addressed to other people and may harm them. It is not a private activity, which is why we need to justify special reasons to protect freedom of speech (Schauer, 1982: 7–12). There remain strong doubts about whether more or less unlimited freedom of expression necessarily leads to social progress, as Mill argued, and whether upholding that freedom precludes government from its regulation in the pursuit of desirable goals such as racial integration, religious tolerance and respect for members of different faith communities (Waldron, 2012). Further, in the United Kingdom and other European countries the law ensures that a wide range of political and cultural views are expressed on broadcast channels, which themselves must not be controlled by media oligopolies. The freedom of expression of powerful individuals and corporations is therefore limited in these ways to preserve fair access to the broadcast media, traditionally considered uniquely powerful; the British “due impartiality” rule instantiates this fair access principle. It is not shared in the United States, where there are few limits on how broadcasting stations can be used by those rich enough to own and control them. A similar argument is now employed to justify the restriction of some kinds of speech, particularly racist and other hate speech, and explicit pornography discriminating against and subordinating women. The regulation of expression of this character is justifed by the argument that it would be more appropriate to characterise such speech as ‘performative’; like the expression of an offcial at a wedding ceremony – “I pronounce you man and wife” – it does something with the words, so its effects are more important than its contents (Langton 1993: 295–97). The feminist legal scholar Katharine MacKinnon (1987: 154, 193) takes the same view. Racist and sexist speech may also have the effect of silencing the expression of members of the target group or diminishing any chance that their views will be heard or properly considered (West, 2012: 222). Restrictions on hate speech and pornography can therefore be justifed on two grounds. First, it is arguable that these types of speech are really acts or forms of conduct, rather than pure propositional speech, so the principle of freedom of expression does not apply to them. And secondly, even if they are covered by this freedom, it would be right to limit its exercise in order to ensure equal opportunities for the voices of, say, members of vulnerable minority groups or women to be heard. In short, freedom of speech may be controlled to safeguard its exercise by all.

Conclusions These last few paragraphs show that recent justifcations of controls on freedom of expression raise complex legal and philosophical questions. These include questions about the meaning of “speech” and whether exercise of the freedom can properly be limited in order to ensure greater equality, for example, of access to radio and television or of effective opportunities 103

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to participate in political and cultural discussion. There are no easy answers to these questions. Legally, much depends on whether freedom of speech and of the press is regarded, as it is under the First Amendment to the United States Constitution, as a right which trumps most other competing values and interests, or as in English law and that of other European jurisdictions, as a right which must be balanced against other rights of equal importance and constitutional values which support limits on its exercise. The traditional justifcations for control, put forward by Plato and in medieval and Renaissance Europe, rested on the unique capacity of authorities – philosopher-kings or the Church – to determine truth and the good of the people. These justifcations were taken over by secular authorities after the Reformation, when the Church began to lose much of its authority. Under the Enlightenment in the second half of the eighteenth century, individuals were trusted, indeed urged, to discover truths for themselves, so the philosophical arguments for control of freedom of expression were discredited, although they were maintained by conservative thinkers such as James Fitzjames Stephen. But it would be wrong to disregard the traditional justifcations for control. There is now widespread anxiety about the easy dissemination of “fake news” or disinformation, particularly on social media. False information, sometimes deliberately spread, may undermine the conduct of fair election and referendum campaigns, so weakening democracy, or it may inhibit the take-up of a vaccine necessary to protect public health (Sedley, 2011: 404–5). Governments, it is argued, should act to stop the dissemination of fake news, either by passing laws prohibiting certain forms of media content or by imposing duties on social media platforms to take down such content. But that argument is persuasive only if government (or some other authority or a private social media platform) can be trusted to determine what is true and what is false information. Distrust of government, as indicated at the beginning of the chapter, reinforces the arguments for freedom of expression. But, equally, it must be asked whether a commitment to freedom of expression means that we must all make up our minds on what is fake news. The resolution of these questions is far from easy, but it is clear that the philosophical arguments considered in this chapter should not be ignored.

References Bambrough, R. (1967) “Plato’s modern friends and enemies,” in R. Bambrough (ed.), Plato, Popper and Politics (Cambridge: Cambridge University Press) 3–19. Barendt, E. (2007) Freedom of Speech, second edition (Oxford: Oxford University Press). Clegg, C. S. (1997) Press Censorship in Elizabethan England (Cambridge: Cambridge University Press). Clegg, C. S. (2001) “Burning books as propaganda in Jacobean England,” in A. Hadfeld (ed.), Literature and Censorship in Renaissance England (Basingstoke: Palgrave) 165–86. Crossman, R. H. S. (1959) Plato Today, second edition (London: Allen & Unwin). Devlin, P. (1965) The Enforcement of Morals (Oxford: Oxford University Press). Dixon, T. (2008) Science and Religion: A Very Short Introduction (Oxford: Oxford University Press). Fellion, M. and Inglis, K. (2017) Censored (London: British Library). Grendler, P. F. (1975) “The Roman inquisition and the Venetian press, 1540–1605,” Journal of Modern History, 47(1), 48–65. Grendler, P. F. (1988) “Printing and censorship,” in C. B. Schmitt (ed.), The Cambridge History of Renaissance Philosophy (Cambridge: Cambridge University Press) 25–53. Harling, P. (2001) “The law of libel and the limits of repression, 1790–1832,” Historical Journal, 44(1), 107–34. Hart, H. L. A. (1963) Law, Liberty and Morality (Oxford: Oxford University Press). Holland, T. (2019) Dominion: The Making of the Western Mind (London: Abacus). Langton, R. (1993) “Speech acts and unspeakable acts,” Philosophy and Public Affairs, 22(4), 293–330.

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Philosophies of censorship and control Levinson, R. B. (1953) In Defence of Plato (Cambridge, MA: Harvard University Press). Levy, L. W. (1995) Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (Chapel Hill, NC: University of North Carolina Press). Leyser, H. (1997) “Piety, religion, and the church,” in N. Saul (ed.), Oxford Illustrated History of Medieval England (Oxford: Oxford University Press) 174–206. MacKinnon, C. A. (1987) Feminism Unmodifed: Discourses on Life and Law (Cambridge, MA: Harvard University Press). Mayer, T. F. (2015) The Roman Inquisition: Trying Galileo (Philadelphia, PN: University of Pennsylvania Press). Mill, J. S. (1991) On Liberty and Other Essays (Oxford: Oxford University Press). Milton, J. (1958) Areopagitica in Prose Writings (London: Everyman, J.M. Dent & Sons) 145–85. Murdoch, I. (1977) The Fire and the Sun (Oxford: Oxford University Press). Plato (1970) The Laws (Harmondsworth: Penguin). Plato (1955) The Republic (Harmondsworth: Penguin). Popper, K. R. (1962) The Open Society and its Enemies, fourth edition (London: Routledge & Kegan Paul). Schauer, F. (1982) Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press). Sedley, S. (2011) Ashes and Sparks: Essays on Law and Justice (Cambridge: Cambridge University Press). Stephen, J. F. (1967) Liberty, Equality, Fraternity, R. J. White (ed.) (Cambridge: Cambridge University Press). Thomas, D. (1969) A Long Time Burning: The History of Literary Censorship in England (London: Routledge & Kegan Paul). Waldron, J. (2012) The Harm in Hate Speech (Cambridge, MA: Harvard University Press). West, C. (2012) “Words that silence? Freedom of expression and racist hate speech,” in I. Maitra and M. K. McGowan (eds.), Speech & Harm: Controversies Over Free Speech (Oxford: Oxford University Press) 222–48.

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PART II

Global perspectives

10 FREEDOM OF EXPRESSION IN LATIN AMERICA IN TIMES OF POPULISM Between Western normative expectations and the complexities on the ground Ezequiel Korin and Jairo Lugo-Ocando Introduction The last two decades of the 20th century in Latin America saw the transition of most countries in the region from military rule to liberal democracies. This transition opened up a new era of hope for the liberalisation of a series of societal institutions, which included the commercial mainstream news media. This went from being highly censored and controlled by the dictatorships of the military juntas to one that, at least legally, had the right to freely and openly publish and broadcast news stories that criticise governments, corporations and those in power. Indeed, and despite the economic downturn of the era of the so-called “lost decade”, the continent saw the spring of democracy and freedom of speech, which brought renewed hopes of an open and dynamic public sphere. One that would leave behind the authoritarianism and censorship of regimes that had caused the forced disappearance of thousands of people and had left the public without a voice (Caputo, 2011; Lugo-Ocando, 2008; Schulz, 2001). However, only a few decades after this democratic renewal, journalists in the region continue to face important constraints against freedom of speech, being both threatened and assassinated. Countries such as Brazil, Colombia and Mexico still exhibit some of the highest numbers of reporters killed per year in the world (Brambila, 2017; Charles, 2020; Monje et al., 2020); in Central America, political and physical assassination of journalists is rampant and goes largely unpunished (de Frutos García, 2016; Sánchez Reyes, 2017); and in Nicaragua and Venezuela the clock has turned back towards dictatorship, thus both becoming almost as authoritarian as Cuba (Cañizález, 2015; Santamaria, 2018). However, as we will argue in this chapter, this is only part of the problem. In fact, our argument runs that freedom of speech among journalists in that region faces two challenges. One in relation to what has been called the “Western normative tradition”, which is

DOI: 10.4324/9780429262067-13

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underpinned by the positivist-liberal approach that seeks to protect and promote freedom of speech by means of developing a legal and institutional framework that protects the privately owned media’s ability to confront the state and to have a certain degree of independence from corporate power. The other, the fact that since the independence wars of the 19th century, most subaltern groups – which in many of these countries constitute the majority of the population – have been excluded or have limited access to the mainstream media spaces. Our argument states that, in the case of Latin America, it is not only about securing freedom of speech in the face of the law or even being able to uphold those rights in practice – as important as that might be – but that since freedom of speech has been historically limited to particular groups in society while denied to others, given that they operate and live on the fringes of political power – it is also important to secure access to these same media spaces for all and not just for the very few. Therefore, our central thesis is that freedom of media cannot be seen just limited to the rule of law but also needs to encompass wider elements around social inclusion of subaltern voices. We do acknowledge, however, that complying with the normative positivist aspirations, which set specifc standards and expectations for freedom and journalistic professional autonomy, is crucially important in those countries. We, therefore, provide a historical account of the region’s relations to freedom of speech and how those relations have evolved over the years and have been shaped by politics. Our analysis also includes looking at how legislation and constitutional precepts have developed, the gaps between the law and its implementation, as well as providing an assessment of the challenges in the face of changes in the media landscape. However, beyond that preliminary and descriptive question about the current state of freedom of speech in Latin America, we also want to inquire about the nature of that freedom in the context of societies that have had a particular institutional development over history and that exhibit high levels of inequality, social exclusion and political instability. In furthering our discussion, we hope to elucidate that traditional Euro-centred liberal and positivist assumptions regarding freedom of speech are not necessarily applicable to some contexts despite universal normative suppositions, particularly in relation to journalistic practices and deontology. Our central argument is that the region exhibits specifc characteristics in relation to the elements, actors and forces that shape the public sphere. Consequently, assessing freedom of speech in the region cannot be just a performative exercise that measures this freedom in the normative terms often used in the United States or Western Europe. Instead, we believe that other criteria need to be incorporated into this discussion in order to understand broadly the nature and demands of freedom of speech in Latin American societies.

Liberal background Overall, the protection of freedom of expression in many Latin American countries is mostly inspired by the liberal/positivist tradition. The liberal project served as the foundation for the independence revolutions of the 19th century in Latin America (Fillipi, 2017; Long, 2018). As such, liberal principles found shelter in the nascent Latin American nations, which is why its founding institutions were deeply marked by them. With the passing of time, we began to see a gradual change in what the legal frameworks say in reference to freedom of expression, including a tagline – almost universal in the region – that qualifes freedom of

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expression and the press, placing on it – already by the mid-19th century – limits in terms of offences against “morals and good customs”. This would eventually serve as the main basis for the authoritarian regimes of the 20th century to effectively limit the liberal (unrestricted) notion of freedom of expression. As a result of these nuances, freedom of expression and the press ceased to be a liberal absolute to become, in some way, customary law, which would be taken by the authoritarian governments of the 20th century as the basis for the curtailment of said rights. Thus, under the ruse that insurgent or minority movements were attacking the established power (and the norms that supported it), it was possible to effectively abandon the absolute concept of liberalism in terms of the right of expression and opinion. In his infuential philosophical treatise, On Liberty, John Stuart Mill (1998) refers extensively to individual freedom. One of the main points made by Mill (1998) is that both the majoritarian opinion and that of the minority must have equal weight, as neither of them – regardless of their majority/minority status – enjoys a greater degree of validity. Within the Latin American context, Mill’s “smooth, continuous, homogeneous, indivisible and extendable without interruption” (Mondal, 2018, p. 505) notion of liberty in regard to freedom of expression would be in stark opposition to the colonial stratifcation system (sistema de castas) which, arguably, reproduced the logic of the feudal system in the new world (Mörner, 1967) and effectively established who could enjoy certain rights, such as land ownership and public offce-holding. However, even if one were to dismiss the colonial stratifcation system as a simplistic reduction of the more complex socioeconomic structures that prevailed during the late colonial period in Latin America (Chance & Taylor, 1977), the exercise of these rights in practice seems in opposition to the liberal, unrestricted and idealised vision of freedom of expression. As such, the Latin American variant seems to have qualifed the rights of marginalised groups – whether these were racial or socioeconomic in nature – in the new nations, thus establishing a clear differentiation between who could, in effect, exercise those rights. It would be, nevertheless, a mistake to believe that this analysis can be applied throughout the whole continent. Mostly because the ideological spectrum of Latin American communication has always been more complex than normally assumed (Ferreira, 2006). In fact, the region’s media systems should not be analysed as homogenous social and political but rather as a distinctive set of national and local entities that – despite being intertwined – exhibit nevertheless particular and distinctive characteristics construct. The region is neither an amalgamation of different media systems nor a chimeric construction that somehow presents a common unity. Instead, it is a geographical place in which media systems have developed in the context of their own specifc political economies, cultures and histories (Dettleff et al., 2011; Lugo-Ocando, 2008; Segura & Waisbord, 2016). Consequently, any discussion around media and society in the sub-continent must incorporate different levels of analysis as well as particular considerations relating to the institutional settings and histories that underpin those contexts. Countries such as Guatemala, Mexico, Paraguay and Peru have in fact a very different social composition and level of political representation than Argentina, Chile or Nicaragua (Carreras & Bowler, 2019; Klesner, 2007; Roniger et al., 2018). Hence, we acknowledge in this piece that the demands and needs for freedom of speech cannot be conceptualised, defned and measured simply with a broad paintbrush of institutionalism.

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Liberalism on the ground Having said that, we do need to say that most countries in the continent today enjoy – at an international and a national level – institutional and legal architectures that serve as a scaffolding to protect the rights of individuals to communicate their thoughts and opinions freely in public and particularly by means of the news media. In this sense, two multilateral institutions in the Americas have been pivotal in conceptualising, defning and measuring the levels of freedom of expression in the region. One, the Organization of American States (OAS), and the second, the Inter American Press Association (IAPA), which over the years have been central in disseminating across the different countries particular political and institutional models that replicate traditions around freedom of speech and journalism in liberal democracies (Cañizález, 2015; Dettleff et al., 2011; Lugo-Ocando, 2020). There has been of course ample debate as to how much the OAS and the IAPA represent the actual interests of the people and to what extent they were just homing pigeons for particular US geopolitical agendas in the region (Magdoff, 1969; Patrick & Forman, 2002) or maquilas for the interests of private media owners in the case of the IAPA – which in the past, for example, has opposed unionisation and professionalisation of journalists (Martini & Luchessi, 2004). We believe that this debate is central to understanding why certain issues reign among others when it comes to struggles around freedom of expression. Throughout Latin America’s history, there have been several legal instruments that sought to protect freedom of expression in the region. One could cite, for example, the enactment of the decision by the Courts of Cádiz in 1810 (López, 1984) as the legal precursor of protections for press freedom in Latin America. Similar protections would soon afterwards become codifed in the legal frameworks enacted by different Latin American countries during the frst half of the 19th century. For example, article 181 of Venezuela’s frst constitution expressly noted in 1811 that the right to manifest thoughts through the press shall be free. Similar protections can be found in the eighth basis for the Peruvian constitution of 1823, article 161 of the constitution of the United States of Mexico of 1824, article 141 of the Uruguayan constitution of 1830, article 150 of the Colombian constitution of 1830, article 10 of the Chilean constitution of 1833 and article 14 of the Argentine constitution of 1853, among several others. As such, Latin American nations, born out of the struggle for independence in the early 19th century, had taken, through their foundational documents, concerted steps towards the protection of freedom of expression. Interestingly enough, the vast majority of these legal protections of freedom of expression were inherently linked to freedom of the press. Notwithstanding the legacy of effectively guaranteeing the freedom of expression within Latin American nations, the region would be put to the test during the second half of the 20th century. The radical change in the protection of freedom of expression throughout Latin America can be traced back to the emergence of authoritarian governments in support of the enactment of the Monroe Doctrine through initiatives such as the OAS and, later, through covert operations in the region, seeking to counter Soviet infuence in yet another theatre of operations of the Cold War (Esparza et al., 2009; Grandin, 2011). Even within this context, certain protections remained in place, at least on paper. In Argentina, for example, the constitutional reform of 1949 preserved, in its article 23, the guarantee of a free press, as did the later reform of 1994 in its article 32. However, as Borrelli (2011) notes, beginning with Perón’s third and fnal term in offce, the relationship between the government and the press was increasingly confictive, devolving into restrictive 112

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and authoritarian policies that extended from the mid-1970s until 1980. In Chile, article 19, part 12, of the 1980 Constitutional reform, ratifed in the midst of Augusto Pinochet’s dictatorship, guaranteed freedom of expression and information, in continuation to the protections set forth in the early 19th century. Despite this, as Castro (1991) notes, during Pinochet’s brutal dictatorship, the Chilean press was subjected to media closures and judicial persecution and even targeted the murdering of journalists. In Venezuela, article 35 of the 1953 constitution, adopted during Marco Pérez Jiménez’s frst de facto presidential tenure, expressly guaranteed freedom of expression, although it omitted protections pertaining to freedom of the press, in a noticeable change from article 22 of the 1922 constitution and article 32 of the 1936 constitution. Despite these constitutional protections, already in 1948, the military triumvirate in power had severely restricted freedom of expression and the press, something that would continue during Pérez Jiménez’s dictatorship until the late 1950s (Mullins, 1966). Mexico’s 1917 constitution, in its articles 6 and 7, expressly guaranteed both freedom of expression and of the press. However, as Knight (1992) notes, throughout much of the 20th century, Mexico exhibited “a distinctive, one-party regime, which combines authoritarianism with relative freedom of expression” (p. 100). What we see in this brief description is that although freedom of expression has received legal protection in most constitutional settings in the region, power was being held by autocrats and dictators. This of course is not unique to the region as, in a quasi-ironic but somehow parallel twist of history, the Soviet Constitution of 1936, promulgated by Joseph Stalin on the eve of the Great Purges, also contemplated – in its article 125 – freedom of speech, of the press and of assembly. So, the question is not if the institutional and legal frameworks protect freedom of speech and uphold the independence of journalists’ work but to what degree does this translate into a more plural, diverse and participative public sphere in Latin America. For Mark Weisbrot (2010), the media struggles in Latin America are not about “free speech” but about hegemonic power. In the region, the private media is heavily monopolised by a few groups, which are often politically partisan and opposed to progressive economic and social reforms. The media systems are extremely skewed towards those in power and have historically sided not only with commercial owners and advertisers but also with dictators (Alvear & Lugo-Ocando, 2018; Ferreira, 2006). However, it is not so much the concentration of media ownership – a problem equally prevalent in the Global North – but the lack of alternative media spaces that constrain not only the ability to provide different accounts and agendas but that also constrain civil society itself (Segura & Waisbord, 2016).

Counter-liberalism Indeed, while the liberal notions around freedom of expression in the realm of journalism were (and continue to be) truly important in advancing political engagement and expanding the public sphere in the West, they were nevertheless restricted to particular groups in those same societies and even more in the Global South (Anker, 2020; Losurdo, 2014). Moreover, and relevant to our own focus, at the same time of the consolidation of a liberal positivist tradition in the US and European journalism, the Global South was at the receiving end of colonialisation and slavery, the very same essential fabrics that made possible the political economy that sustained the emergence and development of liberal systems in the North (Losurdo, 2014; Lugo-Ocando, 2020). 113

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If we were to make the assessment of the state of freedom of expression in Latin America following the liberal tradition, we would probably provide quite an optimistic overview. One that surely would account for the tremendous advances in the last three decades where most countries left behind military dictatorships. However, as Ignacio J. Álvarez (2007) recognised during his tenure as Special Rapporteur for Freedom of Expression at the OAS, despite important advances in relation to the consolidation of democracy in the region, freedom of expression continues to be a novelty that faces important challenges in practice. Even at the height of the return to democracy in the 1980s, millions continued to be excluded from the media spaces reserved for particular elites despite constituting the great majority of the population (Alfaro-Moreno, 1985; Esteves, 2009). In the region, the socalled “mass media” was never a space for the many to voice their struggles and debate about their futures, but a hegemonic instrument reserved for the very few to set specifc agendas and dominate political debate. Part of this was due to the fact that the region never truly experienced the type of industrial revolutions that Europe and the United States did, which brought together the mass media into society as we know it today. Urbanisation of the population happened very late in Latin America, which only came to be in most countries in the 1960s (Almandoz, 2014, 2016; Gwynne, 2017). For most of the previous era, high levels of illiteracy, low penetration of electrifcation and widespread rurality stood as barriers to access to the then-existing media spaces. However, even as many of these barriers have been lowered over the years – at least those created by the previously predominant rurality of the population and literacy levels – some remain in place. Despite this persistent exclusion, the liberal normative framework still assumes that through the law and the democratic institutions – both at a national and international level – these societies can achieve freedom of speech in the sub-continent. This is because the framework fails to recognise the need for structural changes in order to guarantee and safeguard the collective rights of communities that have been historically excluded from the spaces for public debate and decision-making. This leads to the paradox in the continent whereby analysis based on the liberal-positive framework assumes progress in the camp of freedom of speech despite the fact that the majority of citizens remain bypassed. The fact that the laws safeguard freedom of expression or that governments are actually willing or capable of complying with those laws, are in practice no guarantee for diversity, plurality and inclusion in the news agenda or coverage. To be sure, throughout a great deal of the republican history of the continent and since the independence wars, most governments – including the most ruthless dictators – have often contemplated legal and institutional mechanisms that claim to protect freedom of speech, even if it was just to pay lip service to the concept. Moreover, even in those cases when democratically elected governments followed through with these normative promises, it made little difference to the incorporation of the voices of those who, still to this day, remain excluded. So, for Latin America it has never just been a question of only having institutions and laws that protect freedom of speech but also to foster the structural conditions for participation. It is because of this that we challenge the assumption that the normative liberal model is the best explanatory theoretical framework to understand freedom of expression in Latin America. This, despite the fact that we do recognise ample shared universal values around the notions of freedom. Nevertheless, we argue that the assumed liberal model lacks suffcient explanatory power in many Latin American societies as it is one that is underpinned by positivist thinking and therefore refects a set of aspirations formed in the European context, which have little to do with the institutional grounding that one tends to fnd in Central and South American societies. 114

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Our central argument relates to Hannah Arendt’s (1963) point about assuming freedom’s revolutionary attribution by linking it to the possibility of asserting power through human action. In the same way, we suggest, that freedom of speech in Latin America cannot be just about one’s desires to express one’s opinions or to be able to just express dissent among equals. Instead, as some authors point out, we believe that freedom needs to be linked to the intrinsic quest for justice where freedom cannot be dissociated from politics and human action. Nick Nesbitt makes this exact point when referring to how the Haitian Revolution went beyond the liberal tradition that by then still embraced slavery (2008, p. 125). In a similar way and despite the fact that we do acknowledge the universality of unalienable rights, we argue that Latin America requires a distinctive explanatory theoretical framework that can allow for the distinctive and very particular nature of how freedom of expression needs to be conceptualised in the region.

Freedom as collective action One of the reasons to develop that framework in the context of Latin America is that so far most of the literature in the West deals with individual rights. Only on a few occasions does it address the issue of collective rights such as freedom and it is only broadly construed. This problematic assertion derives from the relatively recent incorporation of collective rights in philosophical and legal discussions (Galenkamp, 1991), most of which took place during the latter part of the 20th century. In part, due to their incipient form, the acceptance of certain collective rights – such as those related to the environment or cultural identity – continues to be rather contentious. On the other hand, other collective rights – such as the rights of marginalised populations to be adequately represented or to be able to voice their own stories through the media – remain only as intellectual exercises and discussions rather than tangible realities. Therefore, we posit that freedom of expression is, inherently, a collective right and a nonrival public good, such that – in principle – its enjoyment by one person (or group) does not preclude its enjoyment by someone else (or another group). Approaching freedom of expression merely from an individualistic purview, something – as discussed above – deeply ingrained in its liberal conceptualisation, presents severe limitations to understanding the apparent inconsistencies of complex societal realities. In these contexts, although collective rights such as those entailed by a broader conception of freedom of expression seem to be guaranteed through longstanding elements in the legal framework, their actual enactment remains utterly ineffective in practice. Consequently, shedding the liberal individualistic purview of freedom of expression for an approximation to it as collective action allows us to better analyse the situation in complex societies, particularly those with a greater orientation towards collectivist frameworks (Triandis, 2018), such as those of Latin America. Doing so enables us to highlight the inequities derived from the structural conditions by which freedom of expression and of the press became articulated throughout Latin American history. To do so, we begin by revisiting Mancur Olson’s (2012) seminal work from the mid1960s, which outlines collective action theory from two main tenets: “that individuals confront discrete decisions about free riding and that formal organisation is central to locating and contacting potential participants in collective action, motivating them, and coordinating their actions” (Bimber et al., 2005, p. 365). This latter characteristic has come under question in recent years, mainly because of communicational and organisational innovations derived from the highly interconnectedness of present-day societies (e.g., Bimber et 115

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al., 2005; McCaughey & Ayers, 2003; Norris, 2002). Despite this, using collective action theory as an analytical framework to analyse the emergence and development of freedom of expression and of the press in Latin America, helps us understand how the benefts perceived by early contributors (in this specifc case, mainstream media) translated into heightened economic and political infuence within each country in the region and, in turn, diminished access to said freedoms. As such, applying Olson’s theorisation to freedom of expression in Latin America, it becomes evident that, as the different nations became established and consolidated, owners of media outlets – frst, print and, later, radioelectric – were able to help signifcantly shape the political sphere to beneft their interests. Paradoxically, however, this resulted not in furtherance of freedom of expression but, instead, in a complex structure of formal legal protections for the communicational exercise that was centred in securing the rights of media owners rather than on its character as a collective right. This disjunction can be clearly seen in the role played by the Inter American Press Association (IAPA), a predominantly conservative and highly infuential association of media owners in Latin America, regarding the advancement of freedom of the press and the closely related collective right of freedom of expression. As Gargurevich (2015) notes, the IAPA views freedom of the press as inherently tied to a free market economy, thus emphasising the entrepreneurial interests, unlike journalists in the region who focus their attention on conditions that could help democratise freedom of expression. This became visible, for example, in the IAPA’s opposition to the communicational policies enacted in the late 1970s by several Latin American governments under the sponsorship of UNESCO (Villadiego Prins, 2010). The aforementioned disjuncture has led the press in the region to become “the defnitive opinion space for the dominant segments while remaining a medium that is economically and culturally inaccessible to the majorities” (Martín-Barbero, 2001, p. 37). The deep entanglement between political and economic power, concretised in transnational organisations such as the IAPA and in the local partisanship, has displaced attention from the construction of more inclusive media spaces in Latin America. On the contrary, this situation has allowed an almost oligopolist control over the means of symbolic-expressive representation, thus serving to marginalise vast swathes of the population. This complex system of relations articulated between media owners and other dominant segments in Latin American nations has, thereafter, contributed to the preservation of the individual rights associated with freedom of the press as a free enterprise while simultaneously furthering the structural conditions that dismiss the centrality and urgency of the collective right of freedom of expression. As this has happened, the subaltern voices of the region, that in many cases constitute the majority of the population, remain largely excluded from the mainstream media sphere. Their political voices in the media sphere stay silent and their ability to participate limited. No wonder they take to the streets to protest, as it is only there – even under brutal repression – where they can fnd freedom of speech.

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11 PROTECTING THE PANDEMIC PRESS Exploring press freedom in Africa during the COVID-19 era Bruce Mutsvairo and Kristin Skare Orgeret Introduction Addressing journalists during an occasion to mark World Press Freedom Day in May 2022, Tanzanian President Samia Suluhu stated that her government was renewing laws to enable journalists to operate in a safe and free environment. At the same time, the African Union renewed its commitment to the safety of journalists by committing itself to upholding their rights and freedoms while vowing to protect journalists from harassment and abuse (African Union, 2022). In spite of this seemingly unwavering support for a free, independent and safe press, evidence on the ground attested to an ongoing assault on journalists and media freedom, particularly during the COVID-19 pandemic. For example, journalists including Uganda’s Patrick Bukenya and Scovin Iceta were physically attacked by police for violating the nation’s unpopular nighttime curfew. In South Africa, it was widely reported that police had beaten journalist Paul Nthoba for photographing them while administering COVID19 lockdown laws. Correspondingly, ten journalists in West Africa either suffered physical attacks, were threatened or arbitrarily dismissed between May and August 2020, reported regional media advocacy group, MFWA, underscoring a broader danger for journalists covering the pandemic in Nigeria, Senegal, Guinea, Gambia, Liberia, Mauritania and indeed the rest of Africa. Journalists play a vital role in ensuring the right to freedom of expression and access to information, which is protected both under international human rights law and also in several national constitutions. Furthermore, journalists exist as a part of an ecology in which their work infuences and is infuenced by the conditions encircling it, and in the midst of the COVID-19 pandemic, journalists had the challenging task of gathering and distributing accurate information (Perreault and Perreault, 2021) Press freedom “is the foundation for journalism” (Frey et al., 2021: 60) or the “fourth pillar of democracy” Balahmar (2021: 122) Cruft sees no difference between press freedom and human rights, arguing journalists’ “core role-based rights hold high-priority moral importance because of their relationship to the human rights they serve” (2022: 367). Such assertions are, however, not always in tan-

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dem with governmental and societal expectations and notions of press freedom particularly in non-democratic settings. The purpose of this chapter is to appraise the state of journalism in Africa during the COVID-19 pandemic, zooming in on issues associated with press freedom, broadly construed. Drawing on a comparative case study analysis of the situation in Nigeria and Tanzania during the COVID-19 pandemic, the chapter explores, identifes and critiques some of the challenges that journalists faced while covering the pandemic and discusses the way forward.

Conceptualising press freedom? Before we examine press freedom, it is important to have a basic understanding of what “press” entails. Far from being a monolithic entity, press actors consist of “a group of businessmen, journalists and technical professionals who are not necessarily interested in promoting access to public information” (Bertoni, 2012). The press carries an agenda-setting role in society (Waisbord, 2008) In a democratic society, media freedom and independence are considered the backbone and pillar of its progression (Öztunç and Pierre, 2021) Notwithstanding the challenges of defning a democratic society, we see value in intersecting press freedom and democracy. For example, a free press “facilitates the fow of information between the government and the public, offers a forum for political discussion and deliberation, and watches out for abuses from powerful fgures” (Duffy and Maarouf, 2015: 3). For Oster (2015), there is no need to even have a conversation about it because media freedom is a fundamental right. But an African perspective long submitted by Ogbondah (1994) suggests that press freedom has the hallmarks of instigating internal strife, which many fragile states are keen to prevent. For Barry (2007: 6) freedom of the press is “an application of the individual human rights principle of freedom of expression”. Indeed, press freedom has come a long way. In its original form, posits Koltay (2015), it simply meant journalists having to seek state approval prior to publishing their work. But it has since evolved with Koltay suggesting freedom of the press and freedom of speech have been used interchangeably in many Western jurisdictions. He adds that Justice Potter Stewart in the United States identifed a clear distinction between the two by propounding that institutions not individuals were the only ones to have the right to freedom of press. Justice Stewart’s submission has since been challenged by the omnipresence of the digital age, where anyone with an electronic device and network access could supposedly gather and disseminate news and information. A demarcation line is drawn between what Tambini (2021) considers the American and the European approaches to media freedom. He states that the American version more or less bases itself on “generic speech rights” disregarding journalistic privileges (p.136) while the European viewpoint is open to protecting “a ‘watchdog’ media through specifc privileges such as source protection and support for journalism”. These two distinctions feed well into Berlin’s (1969) negative and positive freedom attribution, with Sapiezynska and Lagos (2016: 550) suggesting “whereas negative freedom is the absence of restrains and obstacles, the positive freedom means the possibility of acting freely that leads to self-realization”. The digital era has presented opportunities for press freedom as journalists and citizen journalists can now use digital technologies to bypass traditional censorship mechanisms mostly used in autocratic establishments. For example, recent fndings from research in Turkey and Tunisia concluded that enhanced social media access could undermine press freedom (See Kocak and Kıbrıs, 2022) But even in democratic societies journalists also have 120

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to deal with issues such as digital surveillance, online harassment and in some cases even murder. In 2017, the prominent anti-corruption journalist and blogger Daphne Caruana Galizia was killed in Malta and the following year the 27-year-old Slovak investigative journalist Ján Kuciak and his fancée were both shot dead in their home (Urbániková and Haniková, 2021) The contract killers were later convicted, whereas the mastermind behind the killing remains free. This may serve as an illustration of how impunity for crimes against journalists remains extremely high globally. The assassination of Dutch crime journalist Peter R de Vries in the Netherlands’ capital in July 2021 also sent shockwaves across the world. Challenges raised by Ohchr (2022), the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression include “online and offine attacks and killing of journalists with impunity; criminalization of journalism and legal and judicial harassment of journalists”. In other words, although journalism has never been a safe profession, there seems to be a global tendency that the profession has also become more dangerous outside regions of war and confict.

Press freedom in Africa Many African countries offer varying contradictions in terms of how press freedom is perceived and practised. Cohen and McIntyre (2020: 649) identify Uganda as a perfect example of a country where this contradiction clearly exist. Citing Freedom House fndings, they postulate that the country is “said to have one of the most free and active media landscapes in Central and East Africa” while on the other hand an “array of legal and extralegal mechanisms continues to limit free expression”. Their observation shows the unique press freedom landscape associated with Africa. Central to that uniqueness is the leadership status of Africa’s political elite. Uganda is home to one of Africa’s long-serving presidents, Yoweri Museveni. He is aware of the importance of balancing journalists rights on one hand, and maintaining his hegemony, on the other (Mutsvairo and Salgado, 2021) Ultimately, it’s his political power that comes frst if he has to choose. When he feels threatened, he will unapologetically unleash the security apparatus against journalists or opponents, perceived and real. Leeson (2008) proposes that controlling or infuencing what journalists write is purely based on the understanding that the media has an important function to play in any given society. It is by no surprise then that several African governments are keen on trying to infuence not only what gets disseminated but the models used in the dissemination fows. The state of press freedom differs from one African country to the other. Whereas Namibia is top of the list of African countries in terms of freedom of expression and press freedom, bypassing Western democracies such as Belgium, the UK, France, the Netherlands and the USA (RSF, 2022), up to 25 journalists died in targeted attacks in sub-Saharan Africa in the fve years leading to 2021. In nearly all cases, nobody got arrested for committing such heinous crimes (Prasad, 2021: 4). In Gambia, press freedom infringements range from harsh press laws lack of professionalism, and a lack of access to information by reporters observes Senghore (2012) In Zimbabwe, independent journalists are either silenced, intimidated or harassed (Mashingaidze and Buchanan-Clarke, 2021, Moyo et. al, 2014) In a report titled “The state of press freedom in Southern Africa”, UNESCO identifed Botswana, Zambia and Zimbabwe as leading attempts to surveil citizens and journalists online, noting that long before COVID-19 the press freedom ecosystem was facing a number of challenges (Gervasius-Nakale, Nyathi and Masters, 2021). The COVID-19 pandemic, however, heightened the harassment and intimidation of journalists with insults and coercion becoming 121

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the norm even in countries with an established track record in press freedom such as South Africa.

Case study: Constraints and opportunities – Nigeria Nigeria was the frst sub-Saharan African country to report a confrmed case of COVID-19 on February 27, 2020, two weeks before the pandemic was declared a global pandemic by the WHO on March 11. The frst reported case was an Italian citizen working in Nigeria who returned from Milan, Italy (Amoo et. al, 2020). But even before the arrival of COVID19, Nigeria was one of West Africa’s most dangerous countries for journalists, with rampant reports of surveillance, attacks, arrests and even murder with reporters targeted for doing their work. Kente et al. (2021) show how the pandemic came with risks not least for the journalists on the frontline whose duty to keep their audiences informed could only be admonished to take precautions. Journalists took it upon themselves to start reporting on the pandemic and the need to ensure the safety of all. However, while other citizens appeared vulnerable to COVID-19, journalists in their numbers were also caught in a similar web. During the period when total lockdown was recommended as a way of slowing down infection rates, Nigerian journalists still had to go about their businesses of keeping the people informed. The Nigerian journalists were considered essential workers and authorised to move freely in order to inform the society on the ongoing crisis. In the second offcial lockdown in the country, from June 2, 2020, the strict curfew from 8pm to 6am did not apply to healthcare workers or journalists. This made them more exposed to the coronavirus, putting their safety on the line. It became common for Nigerian journalists to talk about highly diffcult conditions they were operating in during the pandemic as Alade and Samusi (2022)’s in-depth interviews with Nigerian journalists revealed. The safety threats they encountered include the health risk of contracting the highly contagious virus, fnancial insecurity and emotional stress. Several journalists felt they received little or no support from the media houses they worked for. The COVID-19 pandemic enhanced violence against journalists in Nigeria and it is believed that their voices were seriously endangered in the process. Their position was less helped by the rapid spread of pandemic-related misinformation and disinformation (Mutsvairo, 2020) Like in many other African countries, religious leaders took centre stage, sometimes countering and questioning offcial reports about the pandemic. In a nation where many are likely to trust what a priest or religious leader says rather than offcial or journalistic accounts, Nigerian journalists and citizens became the target of hate as they were accused of reporting lies and “fake news” about the pandemic (Apuke and Omar, 2021; Ahmed and Msughter, 2022). Also, as the pandemic in periods forced journalists to apply social distancing, digital technologies became more present in the journalists’ newsmaking practices. This also involved a larger exposure to digital violence, not least to female journalists who experienced more severe online abuse from hostile actors than their male colleagues (Posetti et al., 2020). While Nigeria’s constitution guarantees freedom of expression and press freedom, limitations to these enshrined rights have occasionally been registered. For example, authorities in the West African nation randomly arrested journalists on COVID-19-related charges. Saint Meinpamo Onitsha was one of the unlucky ones. He was put in police custody after his online news provider reported that a COVID-19 isolation centre in Nigeria’s northern Kogi State had collapsed, infuriating offcials. He received charges of violating Nigeria’s Cybercrime Act (Committee to Protect Journalists, 2020). Another Nigerian journalist 122

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Sikiru Obaraseye became a victim of police brutality in August 2020 after photographing law enforcement agents assaulting citizens “for violating mandatory mask regulations” (Egwu, 2022). Furthermore, another Nigerian journalist Kufre Carter was mentioned in a Cartooning for Peace, Reporters Without Borders (RSF) joint report (2020) on press freedom in Africa during the pandemic. Carter spent a month in prison on conspiracy and defamation charges. Nigeria topped the report with 15 cases of a total of 109 press freedom violations that the report identifed with the COVID-19 coverage in Africa.

Case study: Reporting on a non-existing pandemic – Tanzania In Tanzania the COVID-19 pandemic evolved against a backdrop of a restrictive situation for press freedom backed by the 2015 Cybercrimes Act and the 2018 Electronic and Postal Communications (Online Content) Parliament approved the Cybercrimes Act in April 2015, seeking to address “issues of child pornography, cyber bullying, online impersonation, electronic production of racist and xenophobic content, unsolicited messages, illegal interception of communications, and publication of false information” (Tanzania, 2015). The Electronic and Postal Communications (Online Content) Regulations were adopted on March 16, 2018 granting powers to the Minister responsible for communications to make regulations upon recommendation of the Committee on content-related matters. Whereas the 2015 and 2018 regulations were already highly restrictive and had been criticised by international freedom of expression organisations, the regulations were made signifcantly more punitive as the pandemic evolved, seriously impeding access to reliable information and with a serious chilling effect on journalists. The examples cited below are by no means exhaustive but give a good idea of the attacks on the right to freedom of expression, access to information and media freedom during the pandemic. The frst case of COVID-19 was detected in Tanzania in the middle of March 2020 when a passenger arriving from Belgium tested positive on her arrival in Arusha (Kombe, 2020). Soon after, on March 21, 2020, Prime Minister Kassim Majaliwa directed the Tanzania Communication Regulatory Authority (TCRA) to monitor and apprehend persons disseminating “fake news” about COVID-19. Under the leadership of President John Magufuli, Tanzania refused to acknowledge the existence of the virus, fuelling widespread misconceptions about the pandemic. On April 6, 2020, the editor of the Kiswahili-language publication Kasheshe, Afrikana Mlay, was arrested for allegedly spreading “false information” on social media about the pandemic, indicating that Tanzania was hiding the actual number of COVID-19 infections. According to Xinhuanet (2020), the police said Mlay would be charged in court for spreading information that was likely to “create panic” and undermine state security. A few weeks later, on April 17, the TCRA suspended Tanzania’s leading newspaper Mwananchi’s licence for six months and fned them fve million Tanzanian shillings (around 2000 USD) for allegedly violating the Electronic and Postal (Online Content) Regulations of 2018. The suspension happened shortly after the daily newspaper had posted a photo of President Magufuli shopping at a fsh market crowded with people on April 13, by all accounts breaching global guidelines for social distancing, which elicited an online discussion about Tanzania’s approach to COVID-19. The authorities claimed the photo was taken prior to the pandemic, and Mwananchi quickly removed the photo and apologised. In the same period, on April 20, Tanzanian authorities suspended Talib U. Hamad, a journalist with another daily newspaper Daima, for six months for COVID-19 coverage. On April 30, two journalists from Mwananchi were arrested and charged under 123

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the Cybercrime Act 2015 for disseminating “false” information about COVID-19 victims on WhatsApp. The Tanzanian government stopped disclosing COVID-19 fgures at the end of April 2020. This was followed by a directive restricting access to and dissemination of information on COVID-19 issued by Prime Minister Majaliwa at the end of May (Article 19, 2021). In June 2020, the then-President Magufuli declared that “citizens’ prayers had eliminated the virus in Tanzania”, and that those recuperating in hospitals had been released (BBC, 2020). All public activities resumed in Tanzania within the same month. In fact, a recent study comparing Tanzanian and Zimbabwean regulatory frameworks during the pandemic concluded that both governments had introduced laws that restricted free journalistic practice (Augustine, Matsilele, Msimanga, 2022). On July 10, 2020, Kwanza Online TV’s licence was suspended for 11 months for sharing a health alert on Instagram, issued by the US Embassy, warning that Tanzania’s COVID-19 cases were rising. According to the TCRA, Kwanza Online TV had published an unbalanced story, intended to cause panic and damage the country’s economy, and that this was against the Electronic and Postal Communications (Online Content) Regulations from 2018. In addition to the two laws mentioned above, on August 11, 2020, Tanzania’s Communication Regulatory Authority (TCRA) introduced a new rule forcing local media stations to seek government approval before broadcasting foreign content. The amendments intended to regulate radio and television broadcasts were put in place after Radio Free Africa aired an interview from the BBC with Tanzania’s opposition leader Tundu Lissu, deeming the interview misleading. Press-freedom activists and opposition leaders protested against the rules, which they saw as an attempt to prevent Tanzanians from receiving any information whatsoever about COVID-19. The crackdown on journalism and journalists in Tanzania during the pandemic resulted in the country’s unprecedented fall on the Reporters Without Borders Index. The East African country registered a tumble of 53 places between 2016 and 2021, ending on a ranking of 124 out of 180 countries (RSF, 2022) Several international journalist organisations (Amnesty International; Article 19; Freedom House; RSF) as well as the World Health Organization (WHO, 2021) reacted to the Tanzanian government declarations that they saw as violently restricting both public health measures and press freedoms. The Tanzanian authorities’ use of the term “fake news” to crack down on critical voices provides a good illustration of how the concept itself is highly controversial and often confuses more than it clarifes. “Fake news” has been used by an increasing number of not-so-democratically minded heads of state internationally from the former US president Donald Trump to Russia’s president Vladimir Putin to label journalism they disagree with. The misappropriation of the term “fake news” is particularly troublesome in an era of increasing news and information chaos, that has been referred to as “a global expansion of authoritarian rule” (Repucci and Slipowitz, 2022). The criminalising of so-called “fake news” related to COVID-19 by the Tanzanian government choked access to reliable information and had a chilling effect on freedom of expression. When critical reporting is silenced, the vital democratic role of journalism – to maintain an informed citizenry – can no longer be fulflled.

Conclusion: Charting the future of press freedom in Africa While these two cases present a somewhat gloomy picture for journalists, we believe African countries have registered some gains in this hugely important area, which is critical for demo124

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cratic enhancement. Handling journalists during the pandemic became diffcult not just in Africa. While the suppression of press freedom reached unprecedented levels during the pandemic, it is important to note that both Tanzania and Nigeria are experiencing a relatively peaceful post-pandemic period, if we are to assume the COVID-19 quagmires are behind us. After the sudden death in March 2021 of Tanzanian president Magufuli, who had become “increasingly authoritarian and hostile towards the media”, the new President Samia Suluhu Hassan brought “initial hopeful signs that have yet to come to fruition” (RSF, 2022). In Nigeria national elections are forthcoming at the time of writing. Africa’s most populous country still has problems to solve particularly in its restive northern provinces, which are considered unsafe not only for journalists but for everyone, including citizens. But we believe press freedom should be given a chance in Africa. As shown in this chapter, the protection of media freedom became even more relevant during the COVID-19 pandemic. The experiences from the pandemic show us how crucial immediate and valid information could be for citizens to protect themselves. It is important that laws stating that a person is not transmitting or receiving unsolicited messages is not abused by the authorities to avoid questioning of their decisions. The crackdown on press freedom and the reprisals against media institutions and journalists during COVID19 in Tanzania and Nigeria were clearly politically motivated. The future of press freedom is dependent on the willpower and determination of the governments to pay attention to a pertinent question raised by scholars such as Solomon (2022): What if a message is crucial to survival but the receiver did not solicit it? Using law as a tool of censorship, silencing and punishing journalists for doing their jobs has detrimental effects on the freedom of expression. Especially in a time where factual news are increasingly challenged by disinformation and “fake news” it is crucial for a sound press freedom that bona fde journalists and media houses are treated with respect and allowed to carry out their important societal mission without interference from authorities. The advent of social media has empowered citizens including social media infuencers and citizen journalists to freely participate in the gathering and dissemination of news. While our chapter focused on conventional journalists, we believe that suppressing citizen voices will become more and more diffcult going forward. We do not expect autocratic regimes to swiftly turn a blind eye to online or offine dissent but those responsible for stifing freedom of press and freedom of speech are increasingly fnding it hard to carry out their mission. While media advocacy groups, most of them originating from the West, have a critical role to play in advancing press freedom, it is important for stakeholders based in Africa to refuse to be silenced on this important issue. In the process of covering the COVID-19 pandemic, journalists faced different types of risks, often overlapping; they were related to their personal health, political and occupational aspects. In Tanzania the political and occupational aspects were the most prevalent, while in Nigeria the safety threats to journalists were mainly of the health or occupational type. It is also interesting to notice that in Tanzania the political/governmental actors were the main challenge to journalists’ freedom of speech and safety, while the safety threats to Nigerian journalists were mainly perpetrated by members of the society who were dismissive about COVID-19. Although the chapter focused mainly on Nigeria and Tanzania, similar incidents in terms of harassment and intimidation of journalists were recorded across many countries in Africa and beyond. In the continuously disruptive society we live in today, the roles and responsibilities of journalists are constantly shifting. What cannot be disputed, however, is the need to protect journalists, most of whom get targeted for simply doing their job. 125

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12 FREEDOM OF SPEECH IN THE ARAB REGION Noha Mellor

Introduction Since the murder of the self-exiled Saudi journalist Jamal Khashoggi in October 2018 inside his country’s consulate in Istanbul, the long debate about freedom of speech in the Arab region has intensifed. Shortly after Khashoggi’s murder, the British parliament (House of Commons, 2019) urged the UK government to help train law-enforcement organisations around the world, including the Arab region, in how to protect journalists, and it also recommended that the FCO support an international mechanism to punish perpetrators in crimes against journalists, if local governments will not do so. The lack of media freedom in the Arab region was further scrutinised in a recent report (Article 19, 2020, p. 101) which did not classify any Arab country as “open”. The report refers to several incidents of assault on journalists and the prohibiting of NGOs from conducting research without government approval. It also listed specifc cases of assault; e.g. in Morocco, Hajar Raissouni, a female journalist, was detained and subjected to a gynaecological examination and was later released (pp. 106–108); in Algeria, the state blocked social media accounts in 2019, after uprisings erupted to remove the former President Boutefika who ruled for 20 years (p. 110). In Iraq, moreover, the media scene has changed dramatically post-2003 with the rise of ethno-sectarian media organisations, each with a political affliation and agenda, which somewhat resembles the situation in Lebanon where the media have become mouthpieces for various political parties and factions, thereby sustaining the sectarian divisions within society (Dajani, 2019). The same challenges face confict-ridden states such as Syria, Libya and Yemen although the number of media organisations there has increased exponentially in the wake of civil wars; in Yemen, for instance, a couple of hundred outlets (print, online and broadcasting) were set up mostly outside Yemen, each representing one of the warring groups (Mellor, 2021b). Despite the FCO’s recent initiative, this chapter argues that such media initiatives have failed to provide a rounded analysis of the region, overlooking important cultural factors that shape media freedom in the Arab region. Such factors include the role of faith (particularly Islam) in shaping journalists’ and audiences’ understanding of “public interest” and “public morals”; and the legacy of colonialism in the region which has contributed to the increasing distrust of European calls for more freedoms. I argue that a rounded conceptual lens is 128

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needed to “decolonise” media metrics, while attuning to the specifcity of the local contexts. The chapter begins with a short overview of what I see as one-dimensional analysis of media power in the Arab region, which tends to focus mainly on the state’s power, thereby overlooking the active agency of journalists and audiences.

Media freedom: A utopian concept? Two approaches have dominated the analysis of media power: The critical political economy and cultural studies approach. The critical political economy approach tends to focus on media concentration and lack of competition, demonstrating the structural inequalities in the media sector and its overall consequences on audiences’ views of acute political and social issues (Fenton, 2007). The different political economy approaches have primarily focused on the ways of funding mass media and the impact of this funding on the media output. The focus on ownership patterns in this respect examines how the media can be harnessed to sustain the interests of powerful parties, be they wealthy business elites or state bureaucrats. The cultural studies approach, on the other hand, highlights the active interpretations of audiences and their ability to resist dominant media messages (Fenton, 2007). This is because the analysis of media power cannot be confned to the external power of wealth but also to the power of the media to generate meaning from within its practices. Media power ought to be analysed as power over the media (who funds it and who is heard) as well as the power of the media to shape meanings (Hardy, 2014, 197). This, I argue, implies an analysis of media power as a multidimensional concept that encompasses setting a political agenda as well as shaping meaning in society and that considers the diversity within the journalism feld (agency) and the values and symbolism that contribute to shaping the news (culture). For the past two decades, international media organisations such as Freedom House, UNESCO and IREX have used indicators related to the role of the state and the legislative system in protecting freedom of information (UNESCO, 2018, pp. 23–24). Moreover, Article 19 (e.g. Article 19, 2020) bases its analyses on specifc indicators measuring the state’s censorship, the extent of internet freedom allowed by the state, the state’s restriction of civil society, harassment of journalists, party ban and internet surveillance. The focus is usually on the abuses of non-democratic regimes which may refect a biased image of the West seeking to “infuence governments elsewhere” (Gies, 2015, p. 1). While those metrics measure the state’s actions, they hardly engage with how freedoms are defned, measured and exercised on the ground. For instance, freedom of religion is based on the religious rights curbed by the state but not on how clerics may garner state or public support against a particular group. Media self-censorship is also vaguely defned in western indices, and it is unclear how it is measured among Arab journalists across the region. It has also become somewhat of a cliché to represent the case of media freedom as merely a matter of leaving journalists alone to practise their work and act as watchdogs to inform citizens better. Such a depiction of journalists as heroes is based on the wrong premise that they inherently know what their public needs to know and all they need is to be freed from political and market constraints (Ananny, 2018, p. 17). Such an assumption is also based on the notion of a free marketplace of ideas where journalists can sort through different opinions and messages and that they, as well as their audiences, can assess the messages communicated to them independently from their own identities and positions (Ananny, 2018, p. 22). In such a marketplace, journalists are represented as a homogenous group with a com129

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mon agenda thereby eroding the possibility that journalists can be fragmented groups with conficting agendas. The question is how freedom is perceived and practised in the Arab region and the conditions under which journalists make their professional decisions. In the following, I provide tentative answers drawing on the specifcity of the Arab region in terms of their colonial legacies, legal codes and the securitisation of the information sphere.

Postcolonial legacies The Arab states, especially those that endured European colonial domination, had experienced periods of relative press freedom during the early 20th century, as the press then played a pivotal role in agitating the public against the colonial power. This means that the development of press freedom across the region has not moved in a “linear” fashion as promoted in classical accounts of the role of mass media in modernising the Global South (e.g. Lerner, 1958). During the interwar years, for instance, the Egyptian press was characterised as being a space for rational and critical debate, with hundreds of publications representing a diverse spectrum of views; Egyptian dailies were also distributed and read in other Arab states (Gershoni & Jankowski, 2010, pp. 53–56). The veteran Egyptian Tawfq Diyab (d. 1963), the grandfather of Salah Diyab who now owns the popular al-Masry al-Youm newspaper, was accused in 1933 of insulting the Prime Minister but the Court of First Instance released him, confrming that criticising the government was a legitimate right (Fawzi, 1989, p. 40). Subsequently, Diyab was charged on appeal, which led to mass protests across Cairo calling for his release. During that period, the debate about blasphemy was not as stifed as it has now become. For instance, in 1925, the Azharite Ali Abdel Raziq (d. 1966) published his famous treatise “Islam and the Foundations of Government” as a direct response to the debate about the legitimacy of the Caliphate following its abolition in 1924 and the then Egyptian King’s interest to claim the title of Caliph. Abdel Raziq argued that the Caliphate was a political establishment with no religious sanction, stirring an uproar among clerics and the King’s supporters, but Abdel Raziq faced no penalty in court (Ayalon, 1999). In 1926, Taha Hussein (d. 1973) the then professor of Arabic literature at Cairo University published his book “On Pre-Islamic Poetry” arguing that this genre of poetry may be inauthentic and calling to revisit the historiography of the literary texts (Ayalon, 1999). Several Azharites were enraged and called to sack Hussein, who was brought to court for blasphemy, but the general prosecutor freed him of any wrongdoing. In 1930, Mohammed Abu Zayd, an Azharite cleric published a book entitled “Guidance and Illumination in Proper Qur’an Interpretation” in which he argued that the miracles in the Quran should be interpreted metaphorically (Ayalon, l999). A committee of fve Azharite clerics deemed the book to be based on a distortion of the Quran, but they did not seek to ask for any punishment other than forbidding Abu Zayd from preaching in mosques. Thus, despite the religious clerics’ outcry, court legislations interpreted freedom of expression in a more secular fashion. Similarly, the period from 1954 to 1958 was labelled “the Democratic Years” in Syria (Martin, 2015), and in the early 1950s, freedom of the press was guaranteed in the laws in Lebanon, where the 1926 Constitution stated that “the freedom to express one’s thought by word or pen, the freedom of the press, the freedom of assembly, and the freedom of associations are guaranteed within the limits established by law”; similar provisions were available in Egypt, Jordan and Iraq (McFadden, 1953, p. 38). The role of journalism then was to fght 130

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imperialism and ensure some form of Arab unity (McFadden, 1953, p. 19). The historical function of the Syrian press, for instance, was to promote pan-Arabism, and in so doing, the press was not about journalistic practices but patriotism and nationalism (Mellor, 2021a, p. 425). However, post-independent states shared a sense of anxiety that their populations were unprepared to practise citizenship or lead rational civic action which led several states to depend on their male educated rulers to defne the new national narrative (Martin, 2015, p. 20). In Egypt, the Free Offcers who toppled the monarchy declared their intentions to modernise Egypt and sought a new ideological compass that embraced both western modernisation and the specifcity of the religious, ethnic and historical heritage of Egypt. However, once President Nasser died in 1970, his successor, Sadat (d. 1981), embarked on ideological warfare with Nasser’s supporters ending in reviving Islamist movements and in modifying Article 2 of the Constitution allowing the Sharia to become “a major source of legislation”; the wording changed again in 1980 to make the Sharia “the major source of legislation”. During the 1980s and 1990s, lengthy intellectual and legal disputes between traditionalist and secular interpretations of the Constitution continued and took a violent form leading to the deaths of hundreds of victims in hazardous attacks by extremists and the assassination of several liberal fgures such as Farag Fouda and an attempt to assassinate the Nobel Prize laureate Naguib Mahfouz, as well as the censorship of many literary works (Ayalon, 1999). One notable case during the 1990s was that of the Egyptian scholar Nasr Hamid Abu Zeid who was accused of blasphemy after releasing his book “A Critique of Religious Discourse” in 1992, in which he was accused of questioning the notions of paradise and resurrection (Ayalon, 1999). A year later, the Islamist groups and several mosque clerics declared Abu Zeid an apostate and claimed that he could not remain married to his Muslim wife; after receiving death threats, Abu Zeid and his wife left Egypt in 1995 to seek asylum in the Netherlands where he remained until he died in 2010. These examples demonstrate that the Egyptian legal system continued to lean on both religious and civil codes without specifying which Sharia principles should prevail, leaving it open to judges’ interpretation. The problem is compounded by the extreme diversity of Muslims and their interpretations and practice of Sharia, which makes it diffcult to confne Islamic laws to an agreed set of systematic rulings applied across the Muslim-majority states and which can be deemed compatible with modernity (An-Na’im, 2003).

Legal hurdles in constitutional theocracies Indeed, several Arab states can be categorised as “constitutional theocracies” – where Islam is defned constitutionally as a or the source of law interpretations – and where legal codes are often vague, thereby marking a struggle over the power of interpretation between the judicial institutions, on the one hand, and state and private Islamic actors, on the other (Hirsch, 2010, p. 245). This means that non-state actors, such as Islamist groups, can infuence national and regional policies thereby impeding the state’s control over the information fow. In the GCC states, such as Kuwait, the Emir has the ultimate power in appointing the judicial appointments; and in Saudi Arabia, the clerics used to have the power as gatekeepers inside the newsrooms, deciding what was to be covered about politics and gender (Almaghlooth, 2013, p. 165). The mix of civil and religious codes begs the question as to why some Arab states choose to surrender (albeit partially) to civil laws. Countries like Egypt, for instance, as Rosberg 131

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(1995) argues, demonstrate the way authoritarian states can submit themselves to the rule of law in order to restrain the power of the military and security forces, while the judiciary can work on expanding their realm of infuence in society. The result is an ongoing power struggle in states like Egypt (Kandil, 2012) involving the military, the security services and the political apparatus (including the judiciary); or a direct battle between the rulers and clerics – as was the case in Saudi Arabia pre-2017. Another consequence of this mix of legal codes is that it has become diffcult for Arab states to commit to international charters of rights. For instance, the League of Arab States has expressed its conditional endorsement of universal human rights while foregrounding the religious and cultural specifcity of the Arab region as well as state sovereignty in articulating freedoms including media freedom so that “human rights should not be used as a pretext for interference in internal affairs” (see Article 32 of the Arab Charter on Human Rights; Rishmawi, 2015, p. 79). Examples of the judicial confusion in reconciling religious and civil codes abound. For instance, in 2015, the Islamic scholar, Islam el-Beheiry who hosted his own TV show debating and critiquing the Islamic legacy was charged with blasphemy and received a fve-year-sentence but was released on bail when he appealed (Ahram Online, 2015a); later in the same year, the court changed the decision to one year in prison over charges of “contempt of religion” (Ahram Online, 2015b). El-Beheiry’s case illustrates the judicial dilemma in interpreting blasphemy in a country where Islamic laws should be the main source of legislation. In the following year, el-Beheiry was nominated by the Supreme Council for Culture (a state institution) for the King Faisal Peace Award, along with Sayyed al-Qimni, another critic of rigid Islamic jurisprudence. Another example is the liberal journalist and writer Fatima Naaout who was imprisoned for six months in 2016 on the charge of blasphemy, a charge promoted by Islamist groups and their supporters in response to Naaout’s online comments about the habit of sacrifcing a sheep or a goat in the Muslim festival of Eid Al-Adha, describing it as the “greatest massacre” (CSW, 2016). In the same year, an Egyptian TV show (Momken/Possible) was taken off air after interviewing a guest who accused women in the conservative Upper Egyptian society of betraying their husbands. The above examples reveal that human rights, including freedom of speech, are a product of a process, and not a given normative concept, and this should prompt an analysis of the actors and context that underpin such a process, and an acknowledgement of the diverse views due to ideological differences (An-Na‘im, 2003). The problem with (western) media indices is that they tend to bracket the specifc legal context in the region while viewing Arab journalists as rational, communitarian actors who can separate their professional practices from their beliefs of what constitutes public morals, and which could justify their act of selfcensorship.

National security as a public concern Self-censorship here is defned as “the act of intentionally and voluntarily withholding information from others in the absence of formal obstacles” (Bar-Tal, Nets-Zehngut & Sharvit, 2017, p. 4). Journalists, for instance, may be motivated to practise such forms of censorship if they feel that revealing certain information may harm their community or a local/national cause, if it may harm “the image of the ingroup” or it may be motivated by defending a certain value or ideology (ibid. 9–10). The Middle East is a region where self-censorship takes centre stage, particularly with regard to “intractable conficts” such as the Israeli-Palestinian (Bar-Tal, Nets-Zehngut & Sharvit, 2017); this is also evident in postcolonial states such as 132

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Egypt and Iraq where a local narrative usually aims to glorify the in-group and persuading the world of the legitimacy and truthfulness of such a narrative, usually intertwined with the theme of national security. In the Arab region, national security and state interests tend to overlap and the interests of single states may be entangled with those of other states (Korany, Noble & Brynen 1993, pp. 26–27). In the media sector, Arab governments tend to cite national security as one main reason for curtailing media, as well as political freedom. Such a crackdown has been sustained for decades partly due to the incessant conficts and wars that have impacted the region (in 1948; 1967; 1973; 1981–8; 1991; 2003; the ongoing civil wars), and this been has exacerbated by the pervasiveness of the war-on-terror discourse. Seen against this backdrop, Arab military powers in several states have managed to sustain their grip on power thanks to their role as guardians of individual state’s security. As many states weakened, citizens longed for protection and they ended up seeking it “from the very institution responsible for state decay – the military”, and this explains the fndings of recent public opinion surveys which indicate higher public trust in national militaries (Springborg, 2020, p. 22). In Egypt, for one, the army was often depicted as the vanguard and saviour of the nation and even the whole region, and this depiction is reinforced in Egyptian popular culture such as songs and drama (Mostafa, 2017). One example of this support was documented during the so-called “Sisi-leaks” or the leaked conversations that took place in the offce of al-Sisi’s chief-of-staff in 2015, which revealed the power of the military over the media. Many journalists claimed then that they did not need to be forced or persuaded to defend al-Sisi and the army’s policies, with one famous broadcaster saying that “Defending al-Sisi during that phase is not an accusation but an honor and a national duty” (cited in Kingsley, 2015). Security interests are also visible in transitional media ventures which seek to promote different factions, such as in Libya and Yemen. Likewise, Syrian media demonstrates how the media has not only witnessed rival discourses between pro-and anti-government discourses, but it has also been a chaotic scene for international, mostly European, media donors who set up hundreds of outlets in the wake of the civil war in 2011, only to shut down the majority of them later due to an abrupt withdrawal of funding. The result was unnecessary competition among those outlets and a failed attempt to bolster solidarity. National security discourse is also often linked to so-called conspiracy theories which claim that the state’s sovereignty is being threatened by external actors; such discourse in the Arab region is often linked to its colonial history, which feeds into recent arguments that the US is pursuing the same colonial goals (Gray, 2010, p. 79). However, once an issue is classifed as a national security concern, it gets removed from the sphere of political and public deliberation, and placed into a security context where the state security service can claim overall responsibility for that issue. This is also present in the West; in the USA, for instance, as Sam Lebovic (2016, p. 2) argues, the government distinguishes between the freedom to speak (the First Amendment) and the freedom to access information, which has been curtailed by the US government’s “war on whistle-blowers” including Chelsea Manning, Edward Snowden and Julian Assange. The above discussion begs many questions such as whether journalists (as active agents) voluntarily support their governments in the name of national security and/or public interest; and whether it is viable to apply western metaphors of journalists as “watchdogs” to the Arab context, when other professionals such as the military or the judiciary (or clerics) may be viewed as the “heroes” in public discourse. 133

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To sum up, the national security narrative is intertwined with the postcolonial legacy in the region, with the ensuing distrust of many western countries, although this does not mean that the Arab states are wary only of western intentions, as they are equally wary of intraregional conficts.

Patriotism versus regional rivalry The Arab region is characterised by being the stage for rivalries not only among global powers but also among regional actors. Examples abound of the use of media in the region as a tool in accentuating discord among Arab states, which further divided the region into sectarian, economic and political loyalties (Mellor, 2018). These include Qatar’s promotion of its policies via its own growing media empire such as the al-Jazeera network and later the al-Araby network in London; or the pro-Syria outlets in Lebanon particularly al-Manar and al-Mayadeen television channels, promoting Hezbollah, with its links to both Syria and Iran, as a resistance movement. Al-Najjar (2011) argues that Arab journalists’ objectivity is challenged by their sense of patriotism and loyalty to their individual countries, which is regarded as a virtue among journalists and audiences alike. On the other hand, the concentration of media owners in the GCC states has meant the dominance of Gulf capital, not only in the structural media development in the region but also in articulating mass media messages. If media freedom prerequisites diversity of views, then the Arab media are de facto diverse, with over 1300 satellite pan-Arab television channels, targeting audiences across the whole region and in the diaspora, in addition to local outlets. Indeed, the Arab region represents an extreme case of a news media system where media businesses seem to thrive on increasing advertising revenues, despite the limits on free speech. However, the high number of outlets does not necessarily correspond with a diversity of views; for instance, in Lebanon, the high diversity of broadcast media helps reinforce social fragmentation and the creation of agnostic public space (Dajani, 2019). This means that diverse views may not be synonymous with a thriving public sphere, although it could still lead to providing different, albeit adversarial, views that were unavailable to Arab audiences before the proliferation of pan-Arab satellite channels, and which reduced audiences’ reliance on foreign news such as the CNN. Another important, and always overlooked factor in assessing the diversity of the Arab media landscape is the language of the news, which is usually Modern Standard Arabic (MSA) and not local vernaculars. If the news is about “shared” causes and is produced in the predominant written language (MSA), the entertainment programmes by contrast deploy the diverse Arab vernacular and draw on local themes and concerns. This means that audiences tend to wander between the universal (news in MSA) and the particular (local issues in local dialects); above all, this also raises a question about access to news and information in MSA, in a region whose illiteracy rate is around 21% – higher among women (Romdhani, 2019). Still, western media indices do not consider the linguistic code of the news when assessing the accessibility of information to local audiences in the region where talk shows conducted in the local vernaculars may be far more infuential than news produced in MSA. Finally, digital media have contributed to shifting the public agenda in the Arab region with topics previously confned to the private space moving to the public sphere. Now, stories on social media can attract mainstream and legacy media, such as those about sexual harassment. For instance, there have been numerous social media accounts raising awareness of this topic in Egypt, shedding light on cases of sexual assault that used to be covered 134

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up in public debate, while attracting the attention of legacy media inside and outside Egypt (BBC, 2020). This means that those who circulate such stories on alternative platforms may have contributed to setting the news agenda in legacy media although the latter still has the power to frame the news in the way they want (Jungherr, Posegga & An, 2019, p. 407). The new power to infuence mainstream media is termed discursive power or “the ability of contributors to political communication spaces to introduce, amplify, and maintain topics, frames, and speakers that come to dominate political discourse” (Jungherr, Posegga & An, 2019, p. 406); such a discursive power is a pivotal factor in the Arab region characterised by its increasing digital literacy of the youth under 24, who constitute 50% of the region’s population. Indeed, today’s media system highlights the interdependence of media creating a “hybrid media system” (Chadwick, 2017) built upon the interaction between legacy and new/digital media and is based on a newer media logic. In such a hybrid media system, power tends to be diffused among various actors who may steer information fow according to their goals (Chadwick, 2017). This hybridity also characterises the political system such as those in Lebanon and Tunisia (Voltmer, Selvik & Høigilt, 2021). Such hybrid politics exhibit features that combine democratic and authoritarian factors that can constrain but also facilitate agency. Lebanon and Tunisia, for instance, have seen the emergence of hybrid structures of media ownership where intra-elite competition can generate competitive pluralism where no faction or group can fully control the fow of information.

Conclusion The above overview shows that journalistic norms should be understood within local settings particularly in postcolonial states to acknowledge the specifcity of historical trajectory in shaping the indigenous fear or distrust of western intervention. Moreover, western media metrics tend to measure Arab media according to a universalist understanding of human rights, which may lead to a form of “legal Orientalism” where Arab legal culture confrms the projected universality of European legal categories (Ruskola, 2002, p. 190), while copying western norms may only produce weak or failed copies. It can be argued that western normative indices, such as those of Freedom House, are based on the traditional view that links political systems with media systems, thereby seeing democratic systems as by default facilitators of a free press, while authoritarian regimes result in strict media systems. This normative view stems from the classical Four Theories of the Press which seems to thrive to this day, and tends to theorise the state and media as two independent, rather than intertwined (hybrid) entities (see e.g. Vaca-Baqueiro, 2019). Another tool to defne media freedom is to implement Sen’s capability theory or the freedom to fulfl one’s needs in terms of one’s capabilities and the real opportunity to achieve one’s goals. This means analysing how media freedom is used by individuals (journalists and audiences) to achieve their desired result, instead of focusing solely on institutional arrangements (Karppinen, 2016, p. 46). Such an approach would measure the freedom in creating “a vibrant agnostic public sphere” where different ideas and power relations are continuously contested (Karppinen, 2016, p. 47). Overall, we should aim to assess how norms are translated and negotiated locally and how they are contested and transformed. To do so, there is a need to move to a new interactive method whereby legal and media professionals in East and West meet and debate media indices, allowing space for Arab journalists, judges and civil society to present their views of such indices and their underpinning methodologies. 135

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In sum, existing metrics have so far been based on naming and shaming nations that fall behind in implementing western standards, threatening sanctions in case of failure to implement those standards. The 2019 media freedom conference in London, for instance, concluded with the formation of a legal committee to identify the means to enforce global commitment to freedom of speech, without much engagement with the specifc legal context in the region, as explained above. The fear is that Arab states (and publics) may see western media indices as implicated in legitimising the hegemony of western judicial process, instead of adopting a more inclusive and multicultural approach where stakeholders from the Global South, including journalists, lawyers, judges and audiences, can continuously debate some agreed principles surrounding freedom of speech, censorship and blasphemy based on the assumption that the global media feld is an egalitarian feld with no specifc actors claiming superiority over others.

References Ahram Online. (2015a) “Egyptian TV Presenter Islam El-Beheiry Acquitted of Blasphemy Charges.” Ahram Online, 24 Jun 2015. Retrieved fromhttp://english.ahram.org.eg/News/133612.aspx Ahram Online. (2015b) “Egyptian Court Sends TV Host Islam Behery to Jail for One year Over Blasphemy.” Ahram Online, 29 Dec 2015. Retrieved from http://english.ahram.org.eg/ NewsContent/1/64/177654/Egypt/Politics-/Egyptian-court-sends-TV-host-Islam-Behery-to -jail-.aspx Almaghlooth, A. (2013) The Relevance of Gatekeeping in the Process of Contemporary News Creation and Circulation in Saudi Arabia (Unpublished PhD thesis, University of Salford, UK). Al-Najjar, A. (2011) “Contesting Patriotism and Global Journalism Ethics in Arab Journalism.” Journalism Studies 12(6), 747–756. Ananny, M. (2018) Networked Press Freedom: Creating Infrastructures for a Public Right to Hear (Cambridge: MIT Press). An-Na‘im, A. A. (2003) “Introduction: ‘Area Expressions’ and the Universality of Human Rights: Mediating a Contingent Relationship.” In D. P. Forsythe & P. C. McMahon (eds.) Human Rights and Diversity. Area Studies Revisited, 1–24 (Lincoln: University of Nebraska Press). Article 19. (2020) The Global Expression Report 2019/2020: The state of freedom of expression around the world (London: Article 19). Ayalon, A. (1999) Egypt’s Quest for Cultural Orientation (Moshe Dayan Center for Middle Eastern and African Studies, Tel Aviv University). Retrieved from http://www.mafhoum.com/press3/112C33 .htm Bar-Tal, D., Nets-Zehngut, R. & Sharvit, K. (eds.) (2017) Self-Censorship in Contexts of Confict. Theory and Research (Berlin: Springer). BBC. (2020) “Egypt Sex Attacks Fuel ‘Feminist Revolution’.” BBC, 26 Oct 2020. Retrieved from https://www.bbc.co.uk/news/world-middle-east-54643463 Chadwick, A. (2017) The Hybrid Media System: Politics and Power (New York: Oxford University Press). CSW. (2016) “Egypt Writer Sentenced to Three Years Imprisonment.” CSW, 29 Jan 2016. Retrieved fromhttps://www.csw.org.uk/2016/01/29/news/2970/article.htm Dajani, N. (2019) The Media in Lebanon: Fragmentation and Confict in the Middle East (London: Bloomsbury Academic). Fawzi, M. (1989) Tawfq Diyab. Malhamat al-Sahafa al-Hezbiyya. Vol 2. (Cairo: Egyptian General Book Authority). Fenton, N. (2007) “Bridging the Mythical Divide: Political Economy and Cultural Studies Approaches to the Analysis of the Media.” In E. Devereux (ed.) Media Studies: Key Issues and Debates, 7–3 (London: SAGE). Freedom House. (2020) Freedom in the World 2020 (New York: Freedom House). Retrieved from https://freedomhouse.org/country/kuwait/freedom-world/2020 Gershoni, I. & Jankowski, J. (2010) Confronting Fascism in Egypt: Dictatorship versus Democracy in the 1930s (Stanford: Stanford University Press).

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Freedom of speech in the Arab region Gies, L. (2015) Mediating Human Rights: Media, Culture and Human Rights Law (London & New York: Routledge). Gray, M. (2010) Conspiracy Theories in the Arab World: Sources and Politics. (London: Routledge). Hardy, J. (2014) Critical Political Economy of the Media: An Introduction (London & New York: Routledge). Hirschl, R. (2010) Constitutional Theocracy (Cambridge: Harvard University Press). House of Commons. (2019) “‘Media Freedom Is Under Attack’: The FCO’s Defence of an Endangered Liberty.” Twenty-First Report of Session 2017–19, published on 9 September 2019, the House of Commons, Foreign Affairs Committee. Jungherr, A., Posegga, O. & Jisun A. (2019) “Discursive Power in Contemporary Media Systems: A Comparative Framework.” The International Journal of Press/Politics 24(4): 404–425. Kandil, H. (2012) Soldiers, Spies, and Statesmen: Egypt’s Road to Revolt (London: Verso). Karppinen, K. (2016) “Beyond Positive and Negative Conceptions of Free Speech.” In M. Edström, A. T. Kenyon & E. Svensson (eds.) Blurring the Lines: Market-Driven and Democracy-Driven Freedom of Expression, 41–50 (Gothenburg: Nordicom). Kingsley, P. (2015) “Will #SisiLeaks be Egypt’s Watergate for Abdel Fatah al_Sisi?” The Guardian, 5 March 2015, https://www.theguardian.com/world/2015/mar/05/sisileaks-egypt-watergate -abdel-fatah-al-sisi Korany, B., Noble, P. & Brynen, R. (1993) (eds.) The Many Faces of National Security in the Arab World (London: Palgrave Macmillan). Lebovic, S. (2016) Free Speech and Unfree News: The Paradox of Press Freedom in America (Cambridge: Harvard University Press). Lerner, D. (1958) The Passing of Traditional Society: Modernizing the Middle East (New York: The Free Press). Martin, K. W. (2015) Syria’s Democratic Years: Citizens, Experts, and Media in the 1950s. (Bloomington: Indiana University Press). McFadden, T. J. (1953) Daily journalism in the Arab states (Columbus: The Ohio State University Press). Mellor, N. (2018) The State of Arab Media Since 2011: Mediterranean Yearbook 2018 (Barcelona: IeMED). Mellor, N. (2021a) “The Syrian Press and Online Media: A Driver of Arabism.” In N. Miladi & N. Mellor (eds.) Routledge Handbook on Arab Media, 417–427 (Abingdon, Oxon: Routledge). Mellor, N. (2021b) “Media in Yemen – Narratives of Polarization and Fragmentation.” In N. Miladi & N. Mellor (eds.) Routledge Handbook on Arab Media, 491–500 (Abingdon, Oxon: Routledge). Mostafa, D. S. (2017) The Egyptian Military in Popular Culture: Context and Critique (London: Palgrave). Rishmawi, M. (2015) The League of Arab States Human Rights Standards and Mechanisms (Cairo: Open Society Foundations and Cairo Institute for Human Rights Studies). Romdhani, N. (2019) “The Arab World Needs Literacy Programmes More Than Ever.” The Arab Weekly, 16 June 2019. Retrieved from https://thearabweekly.com/arab-world-needs-literacy-programmes-more-ever Rosberg, J. (1995) Roads to the Rule of Law: The Emergence of an Independent Judiciary in Contemporary Egypt (Unpublished PhD thesis, Massachusetts Institute of Technology). Ruskola, T. (2002) “Legal Orientalism.” Michigan Law Review 101(1). Available at: https://repository.law.umich.edu/mlr/vol101/iss1/4 Springborg, R. (2020) Political Economies of the Middle East and North Africa (Cambridge: Polity). UNESCO (2018) World Trends in Freedom of Expression and Media Development.Retrieved from https://unesdoc.unesco.org/ark:/48223/pf0000265969 Vaca-Baqueiro, M. T. (2019) Four Theories of the Press 60 Years and Counting (London: Routledge). Voltmer, K., Kjetil, S. & Høigilt, J. (2021) “Hybrid Media and Hybrid Politics: Contesting Informational Uncertainty in Lebanon and Tunisia.” The International Journal of Press/Politics 26(4): 842–860.

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13 CENSORSHIP AND FREEDOM OF EXPRESSION IN CHINA “Chris” Fei Shen and Weiying Shi

Introduction China is a country with the most sophisticated censorship system in the world. This was developed mainly to curb the political infuences of digital technologies, while digital technologies themselves are a crucial part of the censorship system. Scholars use terms such as “digital authoritarianism”, “techno-authoritarianism” or “tech-enabled authoritarianism” to describe the use of technologies by authoritarian governments to surveil, repress, manipulate and censor citizens (Khalil, 2020; Polyakova and Meserole, 2019). China is a typical digitally authoritarian country, as the government claims internet sovereignty within its borders and controls information and public discourse in order to maintain its dominance (Jiang, 2010a, 2010b). In this chapter, we provide an overview of the situation in China regarding censorship and freedom of expression. The analysis will be primarily focused on internet freedom and censorship, as the dominant space for public expression in China is the internet. This chapter is divided into fve parts. We frst analyse and discuss the rationales behind censorship and the understanding of freedom of expression from the Chinese government’s perspective. We then elaborate on the content and topic restrictions considered “sensitive” in the eyes of the government. Third, we summarise the tools of censorship practices. Fourth, we discuss the temporal and geographical variation of censorship and freedom of speech in China. Finally, we will present fndings from a recent survey regarding how ordinary Chinese citizens think about censorship practices in the context of misinformation.

Government justifcations for internet censorship Article 35 of the Chinese constitution proclaims that “Citizens of the People’s Republic of China enjoy the freedom of speech, of the press, of assembly, of association, of procession and of demonstration”. But in practice, the reality is very different from what is on paper. A long list of rationales is frequently cited in legal documents to justify censorship from the Chinese government’s perspective. We compiled a list of 20 Chinese laws and regulations most relevant to internet governance and examined frequently cited rationales.

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DOI: 10.4324/9780429262067-16

Censorship and freedom of expression in China Table 13.1 Chinese laws and regulations most relevant to Internet governance Name

Effective Date

Issuing Authority

Interim Provisions of the Information Offce of the State Council and the Ministry of Information Industry on the Administration of Internet Websites’ Engaging in News Publication Services Administrative Measures for Internet Information Services (2011 Revision) Interim Provisions on the Administration of the Development of Public Information Services Provided through Instant Messaging Tools Provisions on the Administration of Account Names of Internet Users Provisions on the Administration of Internet Audio-Visual Program Service (2015 Revision) Provisions on the Administration of Internet Live-Streaming Services Cybersecurity Law of the People’s Republic of China Provisions for the Administration of Internet News Information Services (2017) Provisions on the Administration of Internet Forum and Community Services Provisions on the Administration of Internet Group Information Services Interim Provisions on the Administration of Internet Culture (2017 Revision) Provisions on the Administration of Microblog Information Services Provisions on the Administration of Cyber Audio and Video Information Services

6 November 2000

The State Council Information Offce of the People’s Republic of China

8 January 2011 7 August 2014

The State Council of the People’s Republic of China The Cyberspace Administration of China

1 March 2015

The Cyberspace Administration of China The State Administration of Press, Publication, Radio, Film and Television The Cyberspace Administration of China The Standing Committee of the National People’s Congress The Cyberspace Administration of China

Provisions on Ecological Governance of Network Information Content Provisions on the Administration of Internet User Public Account Information Services (2021 Revision) Data Security Law of the People’s Republic of China

1 March 2020

28 August 2015 1 December 2016 1 June 2017 1 June 2017

1 October 2017

The Cyberspace Administration of China

8 October 2017 15 December 2017 20 March 2018 1 January 2020

The Cyberspace Administration of China The Ministry of Culture

22 February 2021

The Cyberspace Administration of China The Cyberspace Administration of China, the Ministry of Culture and Tourism, and the National Radio and Television Administration The Cyberspace Administration of China The Cyberspace Administration of China

1 September 2021

The Standing Committee of the National People’s Congress (Continued)

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“Chris” Fei Shen and Weiying Shi Table 13.1 Continued Name

Effective Date

Issuing Authority

Provisions on the Administration of Algorithm-generated Recommendations for the Internet Information Services

1 March 2022

Provisions on the Administration of Internet Users’ Account Information Provisions on the Administration of Information Services of Mobile Internet Apps (2022 Revision) Administration of Internet Comments Posting Services (2022 Revision)

1 August 2022 1 August 2022

The Cyberspace Administration of China, the Ministry of Industry and Information Technology, the Ministry of Public Security, and the Sate Administration for Market Regulation The Cyberspace Administration of China The Cyberspace Administration of China

15 December 2022

The Cyberspace Administration of China

First, the most frequently mentioned rationales are safeguarding national security and the public interest, public opinion guidance and the promotion of healthy culture (see Figure 13.1). Almost every law or provision states the importance of safeguarding national security and the public interest, and this appeared in all 20 of the listed legal documents. For instance, Article 5 of the Cybersecurity Law requires that the state shall take measures to monitor, defend against and deal with cybersecurity risks and threats from both inside and outside the territory of the People’s Republic of China. Public opinion guidance and the promotion of healthy culture appeared in 17 documents. For example, Article 6 of the Provisions on the Administration of Internet Audio-Visual Program Service indicates that the internet audiovisual program service industry shall spread advanced socialist culture and promote social harmony. The second set of frequently cited justifcations are cleansing harmful information, maintaining social stability and ethnic solidarity and combatting misinformation. For instance, Article 6 of the Provisions on Ecological Governance of Network Information Content states that a network information content producer shall not make, copy or publish any illegal

25 20

20 17 14

15

13

12

10

6

5 0

2 Safeguarding national security and public interest

Figure 13.1

Public opinion guidance and healthy culture promotion

Combating misinformation

Maintaining social stability and ethnic solidarity

Targeting harmful information

Protecting children and the youth

Justifcations for censorship mentioned in laws and regulations

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Anti-terrorism

Censorship and freedom of expression in China

information that contains obscenity, pornography, violence, brutality, terror or crime-abetting. Article 15 of the Administrative Measures for Internet Information Services states that information instigating ethnic hatred or discrimination, or which is detrimental to national unity shall not be produced, copied, published or distributed. Combatting misinformation is a recent addition to the list, given the increase of fake news. Many laws and provisions mention that fabricating or disseminating rumours or false information is prohibited, such as the Interim Provisions on the Administration of Internet Culture and Provisions on the Administration of Account Names of Internet Users. In addition, according to Article 2 of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Specifc Application of Law in the Handling of Defamation through Information Networks and Other Criminal Cases, if misinformation is browsed or clicked on more than 5,000 times or reposted more than 500 times, this could lead to imprisonment for a term of under three years. Finally, the other two less frequently mentioned reasons are anti-terrorism and protecting children. For example, Article 13 of the Cybersecurity Law of the People’s Republic of China emphasises that creating a safe and healthy network environment for minors is essential. In another example, Article 6 of the Provisions on Ecological Governance of Network Information Content states that content related to advocating terrorism or extremism or instigating any terrorist or extremist activity is forbidden.

Targets of censorship Following the rationales spelled out in the previous section, this section elaborates on the specifc content or topical restrictions considered “sensitive” in the eyes of the government. According to the anti-censorship organisation GreatFire.org, about 10,548 applications were unavailable on the Apple Store China (GreatFire, 2022a) and 170 out of the top 1,000 most visited sites were blocked in China (GreatFire, 2022b) as of November 2022. The blocked websites, platforms and apps fall roughly into four categories. Firstly, controlling information fow is not possible without censoring news. Domestic news media are kept on a tight leash of government control but foreign media institutions are not. Thus, blocking becomes the only option. Foreign news outlets and their Chineseversion websites, such as the New York Times, Reuters and the Wall Street Journal, are blocked most of the time. Chinese-language news outlets from Taiwan (such as Liberty Times), Hong Kong (such as Initium) and overseas Chinese communities (for example, Boxun.com) are usually blocked as well. As of June 2022, Greatfre.org (2022b) identifed that more than 213 news applications were unavailable on the Apple Store in China. A report in 2019 revealed that about 23% of 215 international news websites with journalists based on the mainland were blocked (Agence France-Presse, 2019). Second, other than news sites, websites dedicated to illegal content and sensitive topics are censored. These websites can be related to either non-political or political issues. Pornography and gambling websites (for instance, pornhub.com) are typical examples of the former category. The latter category broadly includes websites hosting dissident, pro-democracy and human rights content. Long-standing taboos such as the 1989 Tiananmen Square crackdown and Taiwanese independence can never be seen on domestic web pages. Websites that host content containing criticism of the authorities, leaders and government policies are severely censored (Cook, 2018). Criticism of the strict COVID-19 control measures has recently been heavily censored (Yeung, 2022). In particular, the government deleted a signifcant number of social media posts during the lockdown in Shanghai from March to May 141

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2022 (BBC, 2022; Stevenson, 2022). In addition, these blocked websites also include those of global human rights organisations, such as Amnesty International and Human Rights Watch. Third, social media and instant messaging services can be easily used to mobilise collective actions (see, for example, Brunner, 2017; Liu, 2015). Therefore most international social media and messaging platforms are blocked in China. Examples include Facebook, X, Instagram, Reddit, WhatsApp, YouTube, Clubhouse, Signal, Telegram, Snapchat, Line and Pinterest (GreatFire, 2022b; Associated Press, 2021). Furthermore, the scale of blocking has been continuously expanding. The international knowledge-sharing platform Quora has been blocked since August 2018 (Leskin, 2019). Authorities extended the ban on the Chinese language version of Wikipedia to versions in all languages in April 2019 (BBC, 2019). The newly emerged app Clubhouse was blocked in February 2021, as sensitive topics such as the detention camps in Xinjiang were discussed on this application a few months after its release (Chien and Qin, 2021). In March 2021, the encrypted messaging app Signal was blocked (Yang, 2021). Furthermore, overseas Chinese discussion forums (for example, 6park.com, wenxuecity.com) are usually blocked. Discussion forums from Hong Kong such as lihkg.com, discuss.com.hk and Uwants.com cannot be accessed from Mainland China. Fourth, online tools that can empower people to obtain news and information from outside the Chinese domestic network are another target of control. The prime example in this category is search engine services. When Google entered China, the company censored its service (CNN, 2006), but this was blocked in 2010 after it stopped censoring its search results (Chiu, 2020). A second example concerns foreign collaboration tools. Zoom is partially blocked in China, and people on the mainland could use only a local version released in August 2020 (Kharpal, 2020). Sometimes non-sensitive technology sites could also be banned; for example, the popular coding repository site GitHub was blocked in January 2013 for a few days (Zhai, 2013). File-sharing websites and apps are frequently blocked, such as Slideshare.net, a fle-sharing site that has not been able to be accessed since July 2012 (Chen, 2012). The fle-sharing tool Dropbox was frst blocked in 2010 and temporarily restored in 2014, but it has been blocked again since June 2019 (Leskin, 2019). The last example in this category consists of websites that provide circumvention and anonymising tools. According to Shen and Zhang (2018), about 11% of internet users in China have used circumvention tools to get around the Chinese censorship system for various purposes. The government intensifed restrictions on such tools and banned unlicensed virtual private networks (VPNs) since 2017 (Gao, 2017). Hundreds of VPN apps were removed from the Apple Store in China in 2017 (Nicas, Zhong and Wakabayashi, 2021).

Censorship measures The implementation of censorship demands a considerable array of tools, including legal, administrative and technological measures. In terms of legal measures, new laws and regulations have been introduced since the mid1990s to restrict online content and services. Many recent regulations were issued by the Cyberspace Administration of China (CAC), the central government institution led directly by President Xi Jinping for telecommunication regulation and internet censorship (Miao and Lei, 2016). Internet service licensing and real-name registration systems are essential legal tools to control the domestic network. On the one hand, the government holds a licensing 142

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system for providing critical internet services such as internet news information services and audio-visual programs. On the other hand, the Cybersecurity Law requires internet users to furnish valid identity information when applying for network access, domain registration services, instant messaging and other internet services. These two systems are not directly linked to censorship practices but could create invisible pressures on service providers and users. To maintain the licence, websites and social media platforms must proactively censor content, remove unlawful content and terminate user accounts. Technology companies have hired a large number of human censors to monitor and delete illegal content and have even deployed entire departments consisting of more than thousands of staff to moderate social media content, for example, Sina Weibo (Global Voices, 2017), news app Jinri Toutiao (Lai, 2018) and short video platform Kuaishou (Jing, 2018). Censors have targeted independent writers, bloggers and social media infuencers. Content removal and account deletion could encourage users to self-censor, not least because a severe legal penalty could apply if they violated laws such as the Counterterrorism Law, Criminal Law or Cybersecurity Law. For example, in February 2021 seven people were detained or arrested for slandering Chinese soldiers who died during the confict between China and India in 2020. One received an eight-month sentence, and this was the frst criminal case of insulting martyrs online under the most recent Amendment to the Criminal Law of the People’s Republic of China (Initium, 2022). The administrative tools include a much wider range of internet control measures. Firstly, the government from time to time launches “rectifcation” and “clean-up” campaigns to censor the internet. The CAC suspended 419 websites and platforms, removed 177 mobile applications and closed 12,292 illegal websites in the frst half of 2022 (China News Services, 2022). During the “clean up” campaigns in 2021, more than 22 million illegal or harmful messages, 13.4 billion accounts, over 7,200 live streamers, more than 2,160 applications and more than 3,200 websites were removed or blacklisted (Xinhua Agency, 2022). From the end of 2018 to October 2021, the number of applications decreased by 40% amid such campaigns (Zhang, 2021). Second, the government can also decide to shut down internet access. An example of this practice occurred when the government shut down internet services for ten months following the deadly ethnic rioting in Urumqi (Wong, 2010). This blackout was the most prolonged and widespread in the past two decades. Third, the CAC often “summons” problematic internet service providers for talks and issues administrative fnes. During the frst half of 2022, it summoned 3,491 internet websites and platforms and issued fnes to 419 of them (China News Services, 2022). This scrutiny includes social media platforms (for example, Sina Weibo and WeChat), online search engines (for example, Baidu and Bing) and E-commerce platforms (for instance, Taobao, JD.com, Pinduoduo and Xiaohongshu). In March 2022, the CAC sent a team to the offces of Douban, a popular interest-based social media platform, in order to “rectify” their practices and issued a fne of 1.5 million yuan (Reuters, 2022). In 2021, Sina Weibo was summoned for several talks, received more than 40 penalties and was fned over 17 million yuan (Global Times, 2021). Lastly, another innovative approach to internet control is to set up party branches and strengthen their “party building” capacity within technology companies. By establishing party branches, authorities aim to maintain “ideological security” within these companies, enhance the leadership and control of the Chinese Communist Party and keep the online media outlets in line with the party rule (Hu and Lam, 2017; Pham, 2018). When the frst “party building” symposium for internet companies was held in 2016, many organisations had already established such branches, including Sina Weibo, Jingdong, Baidu and Sohu. 143

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After the symposium, at least 34 Beijing-based internet companies set up party branches in less than a year (Hu and Lam, 2017). Technology companies such as ByteDance and Kuaishou tend to hire party members and candidates with “strong political sensitivity” as content moderators (Pham, 2018). In terms of technical measures of censorship, the most frequently mentioned techniques are IP blocking, DNS (domain name system) manipulation, URL fltering, keyword fltering and algorithm control. IP blocking was the earliest fltering mechanism used in China. All international gateways of the Chinese network are confgured with a list of banned IP addresses, and connection requests to access the blacklisted addresses will be ignored. DNS manipulation works similarly to IP blocking. DNS is a database used to translate textual hostnames into IP addresses, and queries to access any blacklisted domain name will be rejected or redirected to another website. URL fltering is a way to scan the requested URL string for blacklisted keywords. A URL is a string of characters representing a web address which usually consists of a protocol name, a domain name or IP address and a path. Keyword fltering is the most effective fltering mechanism of what has come to be known as the “Great Firewall of China” (Xu, Mao and Halderman, 2011). It occurs at the protocol level rather than at the network level. It is more fexible because it can dynamically cut out a connection without locating the originators of the information (for example, domain name, IP address and URL) or blocking the whole website regardless of the content of individual pages. Keyword fltering can be outwitted using analogies, metaphors, satire and other evasions rather than banned words or phrases (King, Pan and Roberts, 2013). For example, internet users use alternative characters that sound like or look similar to the banned words. Algorithm control is a new technical measure. According to the Provisions on the Administration of Algorithmgenerated Recommendations for Internet Information Services that took effect in March 2022,1 automated content-recommendation systems must adhere to “mainstream value orientation” and promote “core socialist values”. Algorithm-recommended service providers are required to establish and improve their manual intervention mechanisms. The government wants to control the power of algorithms and ensure that people’s minds adhere to mainstream values (Qu and Shen, 2021). The Citizen Lab examined the image-fltering mechanisms on WeChat, one of the most popular social media platforms in China and found that it implemented two algorithms to oversee images: An OCR-based algorithm focusing on the sensitive text in pictures and a visual-based algorithm that flters images that are visually similar to those on the blacklist (Knochel et al., 2018). Similarly, Xu (2018) researched censorship on chatbots and found that two Chinese chatbots utilised algorithms to avoid politically sensitive messages. For example, when chatbots encounter dialogue with politically sensitive information, the AI-driven bots may reply: “I don’t understand what you are saying” or “Let’s talk about something else. What is your favourite video game?”

Temporal and geographical variation It is nonetheless important to point out that censorship in China is not practised uniformly across time and space. Firstly, in terms of temporal variation, authorities tend to tighten censorship before politically sensitive anniversaries or events. For example, October 2022 was a politically sensitive month because it contained many political events: the National Day on 1 October, the seventh plenum of the Communist Party’s Central Committee on 9 October, and the 20th party congress that started on 16 October. A number of circumvention tools and their servers plus all subdomains of Google.com were blocked in early October 144

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2022 . Domestic social media platforms, such as Douyin, Weibo and WeChat, experienced intensifed censorship ahead of the party congress: Many WeChat groups were blocked and users complained that they could not chat as usual (Ting, 2022). In the summer, there was a two-month clean-up campaign targeting social media, short videos and live-streaming platforms that was aimed at removing undesirable information ahead of the 2022 party congress (The China Media Project, 2022). In May 2019, the government temporarily shut down network services in several regions, including Guangdong, Shanghai and Chongqing (Li, 2019). Restricted internet connectivity was also employed as a pre-emptive censorship measure before the 30th anniversary of the Tiananmen Square crackdown. Pro-government commentators are busy on these anniversaries or other sensitive dates, such as the anniversary of the Cultural Revolution or the Communist Party (Lau, 2016). However, the government does not always ramp up censorship and sometimes actually loosens internet control (deLisle, Goldstein and Yang, 2016). For example, offcials unblocked a number of websites, including China Times, Ming Pao, Wikipedia and the BBC, during the 2008 Beijing Olympics. Second, censorship practices in China are not uniform across the entire country. For instance, censorship is practised far more strictly in Tibet and Xinjiang than in coastal metropolitan areas such as Shanghai. Since a series of terrorist attacks and ethnic clashes, the government has used strict surveillance measures to tighten its control of Xinjiang and fght against terrorism (Mai, 2021). Offcials routinely disrupt internet and mobile phone services to staunch information fow when conficts occur (Wong, 2014). For example, the authorities blocked internet access for ten months after the violent clashes in 2009 (Wong, 2010). Journalists, particularly foreign ones, experience severe restrictions when reporting from Tibet and Xinjiang, and approximately half of China’s journalist arrests occurred in Xinjiang (Committee to Protect Journalists, 2019). The government’s controls are not unusual by China’s standards but are more acute in Xinjiang and Tibet (Wong, 2014). An empirical study compared the deletion rates of posts on Sina Weibo across the country and found that provinces in the far west and north, such as Tibet and Qinghai, exhibited higher rates than those in the east, such as Beijing and Shanghai (Bamman, O’Connor and Smith, 2012). In contrast, Hong Kong, a special administrative region with high levels of governance, has relatively little media or internet censorship. However, in recent years the Chinese government has exerted its infuence over the media in Hong Kong by buying out media companies through pro-Beijing sources of fnance. According to a summary by the Hong Kong Journalists Association, nine of 26 mainstream media outlets in Hong Kong were infuenced by mainland authorities or pro-mainland companies (Committee to Project Journalists, 2019). Over half of the media properties are owned by business people with Chinese political appointments (Lee, 2018). Fung (2007) described this phenomenon as the non-organisational concentration of ownership by means of which business people with powerful commercial interests on the mainland dominate the media in Hong Kong. Owners can exert infuence by allocative control rather than operational control. For example, a Malaysian editor, Chong Tien Siong, was “parachuted” into the Chinese-language daily Ming Pao in 2014 when the Occupy Central movement happened (Lam, 2014). Chong is considered pro-establishment, based on his previous work experience. In 2016, the frm operating Ming Pao sold 73% of its equity to a state-owned mainland Chinese frm (Frater, 2016). Another example is the South China Morning Post, the dominant English-language newspaper in Hong Kong. After a Malaysian businessman, Robert Kuok, purchased it in 1993, many journalists left as the management forced them to mitigate critical coverage of China (Committee to Protect Journalists, 2019). In May 2015, the newspaper fred four columnists who often 145

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wrote critical articles about China and Hong Kong. Jack Ma, the co-founder and former executive chair of Alibaba, bought the newspaper in December 2015, at which point journalistic autonomy in the South China Morning Post decreased accordingly (Hernández, 2018).

People’s views of censorship Finally, we move our focus from governmental practices to people and explore with empirical data how ordinary citizens in China think about censorship and freedom of expression in the context of misinformation control. The data for this analysis derives from an online survey of internet users in China, and the data was collected conducted between 2 March and 23 March, 2020. The survey was contracted out to a well-known commercial survey research company in China. In order to achieve a representative sample, we employed a stratifed quota sampling method in order to recruit respondents. The quotas for different gender, age and education groups were set according to the most recent CNNIC report (China Internet Network Information Center, 2019). A total of 3,000 respondents of 18 years old or over participated in the survey, with a response rate of 24.56%. The survey asked two questions concerning support for deletion and blocking in response to misinformation. Respondents were asked to indicate the extent to which they agree with the following statements on a fve-point Likert scale: “Content deletion is the best method to fght misinformation online” and “Account termination is the best method to fght misinformation online”. The average of the two items formed an index (M = 3.77, SD = 1.02, Cronbach’s α = .80). Similarly, support for transparent management was measured by asking respondents to indicate the extent to which they agree with the following two statements on a fve-point Likert scale: “Public discussion is the best method to fght misinformation online” and “Managing misinformation online needs public participation and supervision”. The average of the two items formed an index (M = 3.98, SD = .89, Cronbach’s α = .77). In the cases of support for deletion and blocking and support for transparent management, respondents were divided into three groups: Those who expressed opposition (scores lower than three), those who held neutral views (scores equal to three) and those who voiced support (scores higher than three). As shown in Table 13.2, about 72.2% of respondents supported deletion and blocking measures in order to fght misinformation, although about 13.6% of respondents displayed opposing attitudes. Regarding transparent management, over three-quarters of respondents (77.9%) supported transparent management for combatting misinformation. Less than one-tenth of respondents (8.4%) opposed transparent management. Most respondents displayed favourable attitudes toward both deletion and blocking measures and transparent management measures. Therefore, a relative score for censorship preference was created by taking the difference between support for deletion and blocking and support for transparent management (M =–.21, SD = .92). A higher relative score indicates a preference for deletion and blocking over transparent management. Table 13.3 displayed respondents’ relevant support for censorship strategies. Respondents were divided into three groups: Those who relatively supported transparent management (a relative score lower than 0), those who equally supported both (a relative score equal to 0), and those who relatively supported deletion and blocking (a relative score higher than 0). Over one-third of respondents (35.3%) supported transparent management more. In contrast, 23.9% supported deletion and blocking more. The remaining respondents (40.8%) did not show any preferences.

146

Deletion and blocking Transparent management

147 409 252

Frequency

Opposition

13.6% 8.4%

Percentage 424 411

Frequency

Neutrality

Table 13.2 Frequencies and percentages of support for censorship (N = 3000)

14.1% 13.7%

Percentage

2167 2337

Frequency

Support

72.2% 77.9%

Percentage

Censorship and freedom of expression in China

“Chris” Fei Shen and Weiying Shi Table 13.3 Frequencies and percentages of relevant censorship support (N = 3000)

Frequency Percentage

Relevant support for transparent management

Neutrality

Relevant support for deletion and blocking

1059 35.3%

1224 40.8%

717 23.9%

Table 13.4 Predicting support for censorship (N = 3000) Relevant censorship support b Age Gender (1 = male, 0 = female) Education Family income Marital status (1 = married, 0 = unmarried) Living area (1 = urban, 0 = rural) R-square (%)

–.007*** –.013 –.024 –.005 .085 –.106** 1.0***

SE .002 .034 .016 .019 .047 .037

Note. b indicates the non-standardised coeffcients. SE indicates the standard error. * p