Free Speech

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Ancient Beginnings

While free speech has deep and ancient roots, for much of recorded history, speaking truth to power was ill-advised and often dangerous. Judging from surviving law codes and writings, the great ancient civilizations protected the power and authority of their rulers from the speech of their subjects, not the other way around. The Hittite laws, put in place in present-day Turkey around 1650–1500 BCE, decreed that “if anyone rejects a judgment of the king, his house will become a heap of ruins.”¹ According to the Hebrew Bible, the punishment for cursing “God and the king” was stoning.²

These laws reflected the strict hierarchies that ordered large ancient civilizations, many of which were headed by rulers thought to govern by divine right or even—as in Egypt—to be divine themselves. The Instruction of Ptah-Hotep, an Egyptian collection of maxims from around 2350 BCE, advised against speaking to “a greater man than yourself.… Speak when he invites you and your worth will be pleasing.”³ The ancient Chinese philosopher Confucius (551–479 BCE) also stressed the importance of obedience toward superiors and rulers, asserting that “it is unheard of for those who have no taste for defying authority to be keen on initiating rebellion.”⁴ You would think Confucius’s words were sweet music to the ears of China’s first emperor, Qin Shi Huang, when he ascended the throne some three centuries later. But in 213 BCE, he ordered Confucian literature and historical records predating his own reign to be burned and banned. In the emperor’s own words, as quoted by the ancient historian Sima Qian: “I collected together the writings of all under Heaven and got rid of all which were useless.” His chief minister elaborated that studying the literature and records of the past threw people “into confusion” and led them to “reject the laws and teachings.… Disagreement they regard as noble, and they encourage all the lower orders to fabricate slander.” According to Sima Qian, more than 460 scholars were “buried” for violating the prohibition.⁵ (Whether they were buried dead or alive is a matter of debate.)⁶ This may have been the first organized mass burning of books in recorded history. It would not be the last.

For slaves and women, speech was especially restricted. The Sumerian Code of Ur-Nammu from around 2050 BCE—the world’s oldest surviving law code—decreed that “if a slave woman curses someone acting with the authority of her mistress, they shall scour her mouth with one sila [0.85 liter] of salt.”⁷ The Babylonian Code of Hammurabi from 1792 to 1750 BCE allowed slave owners to cut off their slaves’ ears if they uttered the words “you are not my master.” Freeborn women were also punished for overstepping their boundaries. The Middle Assyrian Laws from around 1076 BCE denounced cheeky women who “utter vulgarity or indulge in low talk.”⁸ Other speech codes were meant to protect the honor of respectable women. According to Hammurabi’s Code, the penalty for slandering a married woman or a priestess was public flogging and head shaving.⁹

Still, among the harsh injunctions of the ancient world, we can detect nuggets of religious tolerance. After founding the Achaemenid Persian Empire in the sixth century BCE, Cyrus the Great issued a clay cylinder declaring freedom of worship for the diverse subjects of his sprawling empire. According to the Hebrew Bible, he also delivered the Jews from their exile in Babylon and ordered their desecrated Temple in Jerusalem to be rebuilt.¹⁰ The United Nations have called the Cyrus Cylinder “an ancient declaration of human rights.”¹¹ But even if Cyrus and his successors promoted religious tolerance, they also punished disobedience by burning down temples, cutting off noses and ears, and burying people neck-deep in the desert before leaving them to die in the blistering sun.¹² So much for human rights.

Some three centuries later, the Mauryan emperor Ashoka ordered a declaration of religious tolerance to be inscribed on boulders and pillars erected throughout the Indian subcontinent. Ashoka declared that “all religions should reside everywhere.” Yet even this should not be misconstrued as an endorsement of religious expression. The fine print encouraged “restraint in speech, that is, not praising one’s own religion, or condemning the religion of others.”¹³

We also find strains of what has—perhaps too generously—been called “primitive democracy.” Among the Assyrians, Babylonians, Hittites, and Phoenicians there were assemblies, councils, and tribunals that allowed for varying degrees of representativity and political debate.¹⁴ According to Aristotle, the Phoenician city-state of Carthage had a popular assembly, which was consulted whenever the ruling Council of Elders could not reach an agreement, and where “anybody who wishes may speak against the proposal introduced, a right that does not exist under the constitutions of Sparta and Crete.”¹⁵ However, this was still far from the idea and practice of free and equal speech that characterized the Greek city-state in which Aristotle did much of his thinking and writing.

Who Wishes to Speak? Free Speech in Ancient Athens

Not until the fifth century BCE does the fog of ancient history reveal a city-state in which the values of democracy and free speech were formalized and articulated as a source of pride and virtue.

Some form of Athenian democracy lasted from around 507 to 322 BCE, with a number of bloody interruptions, but across the various incarnations of this ancient city-state, democratic government and free speech were inextricably linked. Athens was a direct democracy, in which the citizens themselves proposed, debated, and voted for the laws that governed them. In his famous funeral oration honoring those who died in the Peloponnesian War against Sparta, the eminent Athenian statesman Pericles offered a definition of his city’s political system that still serves as a touchstone for democratic governments today: “Our constitution is called a democracy because power is in the hands not of a minority but of the whole people. When it is a question of settling private disputes, everyone is equal before the law.”¹⁶

Yet by modern standards, the Athenian commitment to equality suffered from serious shortcomings. Women, foreigners, and slaves made up the majority of the city’s population but were expressly excluded from the democratic process. Even so, the egalitarian nature of Athenian democracy was radical for its time.

For the Athenians, the state did not exist as a separate entity from the people. Free speech was thus an inherent part of the Athenian political system and civic culture, rather than an individual human right protecting one against the state, as we tend to understand it in modern liberal democracies. The Athenians did not have a concept of individual “rights” but rather one of the duties, privileges, and prerogatives of the citizen.

In time, Athens became the dominant Greek city-state, and the most powerful of the Greek forces who repelled the invasions of the Persian Empire between 490 and 479 BCE. The ancient Greek historian Herodotus argued that while living under tyranny the Athenians had been an unremarkable people. They only reached great heights when they were granted equality of speech.¹⁷ Pericles emphasized in his oration that free popular discourse was a key source of Athenian strength: “We Athenians… take our decisions on policy or submit them to proper discussions: for… the worst thing is to rush into action before the consequences have been properly debated.”¹⁸ At least that was the ideal. But as we shall see, reality has a way of mugging ideals.

The Athenians had two distinct but overlapping concepts of free speech. Isēgoría referred to equality of public, civic speech, while parrhēsía can be translated as “frank” or “uninhibited” speech. Isēgoría was exercised in the Athenian Assembly—the ekklēsia where each session opened with the question, “who wishes to speak?”¹⁹ Parrhēsía allowed the citizens to be bold and honest in expressing their opinions even when outside the assembly and extended to many spheres of Athenian life including philosophy and theater. Central to both isēgoría and parrhēsía was what scholar Arlene Saxonhouse calls the “egalitarian foundations and participatory principles of the democratic regime of the Athenians.”²⁰ The nineteenth-century English historian and radical member of Parliament George Grote, who did much to rehabilitate the Athenian democracy as a model for liberal reform movements, emphasized “the liberty of thought and action at Athens, not merely from excessive restraint of law, but also from practical intolerance between man and man, and tyranny of the majority over individual dissenters in taste and pursuit.”²¹ Free speech was not only a political principle but extended to the cultural sphere more broadly.

One of the most noteworthy champions of parrhēsía was the famed orator Demosthenes, whose surviving speeches mention the term twenty-six times—more than any other Athenian orator. Rising to prominence in the mid-fourth century BCE, he is viewed as the last defender of Athenian democracy and liberty against the greedy imperial ambitions of Philip II of Macedon—the father of Alexander the Great.

Central to Demosthenes’s ideal of democracy and freedom was the principle of open debate.²² He proclaimed that free speech was what distinguished democratic Athens from her bitter rival, the oligarchic Sparta. In his speech Against Leptines, Demosthenes noted with pride that Athenians were allowed to criticize their own constitution and praise the Spartan one, while Spartans could only praise their own.²³ The ability to criticize freely one’s own political system is still a litmus test of democracies, both past and present.

Demosthenes valued free speech and political debate because he believed they led to truth. Democracies were superior to oligarchies that “produce fear,” since the former “have many noble and just qualities, to which sensible people must be loyal, and in particular freedom of speech, which cannot be prevented from showing the truth.”²⁴ However, to Demosthenes the benefits of free speech depended on both a constitutional framework and civic commitment. He was scornful of Athenians who failed to live up to democratic ideals, such as listening to both sides of an argument during debates in the assembly: “Your duty, men of Athens, when debating such important matters, is, I think, to allow freedom of speech to everyone of your counsellors.”²⁵

Demosthenes’s dogged defenses of liberty and patriotism have had a long afterlife. They inspired Cicero in his fight for the dying Roman Republic and Churchill in his efforts to warn against the threat of Hitler. Demosthenes’s insistence that free speech is essential to furthering truth and his emphasis on one’s moral obligation to listen to all sides of an argument would become central to later justifications of free speech, including (even if unacknowledged) those of John Milton and John Stuart Mill. While the modern era of social media has demonstrated vividly the naivety of believing that free speech always furthers the truth, Demosthenes’s arguments still serve as a powerful model for supporters of free and open discourse.

It is, however, important to note that there were limits to free speech in Athens.²⁶ Those who proposed legislation in the assembly violating established laws were subject to punishment under a legal procedure known as a graphē paranómōn, which translates to “indictment against illegal proposals.”²⁷ And while isēgoría ensured equality of speech in the assembly, it did not bar the passage of laws limiting what one could say outside the assembly. Kakēgoría (serious public verbal insults that we would call defamation) was prohibited. Impiety, called asébeia, was another serious offense, punishable by death—as Athens’s most daring thinker would eventually discover. Profaning the Eleusinian Mysteries—secret religious rites—or exposing them to the uninitiated was an egregious act of impiety. That said, while it’s not clear exactly how often the law against impious speech was enforced, we do know that it was nowhere near as sweeping or harsh as the draconian laws against blasphemy and heresy that would dominate Europe for more than a millennium after the victory of Christianity.

As a practice, parrhēsía had a much wider application than isēgoría, since it wasn’t limited to the political sphere of the assembly. It was parrhēsía that allowed the free discussion of politics in the agora, the marketplace where (male) citizens mingled freely. There was no public institution of censorship or inquisition to ensure conformity in writing, science, and public discourse. Parrhēsía also allowed for a rich intellectual life in Athens and provided both positive and negative confirmation of Demosthenes’s (later) point about the virtue of permitting dissent against the very democratic order.

If you were an Athenian citizen in the second half of the fifth century and went to the agora, chances are you would run into a man with a peculiar swagger in his walk, bulging eyes, a flat, upturned nose, and large, meaty lips. Always barefoot and unwashed, he never changed his robes despite using them as a blanket during the night. This shabby figure was Socrates, whom many consider the founder of Western philosophy, even though he never wrote a single sentence. Socrates is famous for his dialectic method, which is basically a Q&A session that whittles down a general topic, such as the meaning of virtue or justice, to more precise concepts. Socrates delighted in humiliating his verbal sparring partners by luring them down logical dead ends, forcing even the most prominent of Athenians to admit their ignorance. Socrates’s opponents would start sweating or break down in tears when verbally stripped naked and slowly roasted. Ultimately, the Athenians would abandon tolerance and debate and resort to law and the ultimate punishment to put an end to Socrates’s parrhēsía. As we’ll learn, even modern democracies are prone to repeat such outbreaks of majoritarian intolerance.

The two “rock stars” of Western philosophy, Plato and Aristotle, both set up shop in Athens. Plato, a native Athenian aristocrat, was hostile toward democracy, perhaps inspired by Socrates’s disgust that any Athenian, be he a “carpenter, blacksmith, shoemaker, merchant, ship-captain, rich man, poor man, well-born, low-born—it doesn’t matter,” could speak on public issues in the assembly, “and nobody blast[ed] him for presuming to give counsel without any proper training under a teacher.”²⁸ Plato advocated what some—most famously, the philosopher Karl Popper—have called a totalitarian state. Aristotle, an immigrant noncitizen, had mixed feelings about democracy, and warned lawmakers against “indecency of speech,” since “the light utterance of shameful words leads soon to shameful actions.”²⁹ But both Aristotle and Plato were allowed to write, teach, and set up academies in Athens, where they could promote alternative constitutions to the one that ensured their liberty to philosophize freely. Athenian free thought also saw great advancements in science and medicine that might have been impossible under a system of strict political or religious censorship.

Outside of politics, the rich theatrical history of ancient Athens shows just how bold the Athenians were when it came to criticizing their own institutions, culture, and elite. There were some restrictions and restraints on what, and who, could be satirized or abused, but neither the gods nor eminent citizens were spared in the Old Comedies. Aristophanes certainly pulled no punches. He mercilessly trolled Socrates, who is portrayed as a buffoon in The Clouds, and cast Cleon, a hawkish politician, as a corrupt slave in The Knights.³⁰ Even gods like Dionysus, who is made to look a fool in the first half of The Frogs, were fair game.

Aristophanes also gave a voice to women who lived under a form of gender apartheid hidden from Athenian public life. In the comedy Lysistrata, women on both sides of the great Peloponnesian War effect political change by denying their husbands sex until they end the war between Athens and Sparta. In fact, the artistic freedom that allowed Aristophanes to pen Lysistrata in the fifth century BCE surpassed that enjoyed by Americans and Greeks in parts of the nineteenth and twentieth centuries. From 1873 until 1930, the United States prohibited the import and distribution of Lysistrata under the anti-obscenity Comstock Laws, and the play was banned during the Greek military dictatorship that lasted from 1967 to 1974.³¹

Unfortunately for the Athenians, the Periclean ideal of free and equal deliberation of public policy serving as a guarantee against rash decisions was vulnerable to exploitation by power-hungry politicians. And the ability of ambitious men to sway the assembly with seductive rhetoric and demagoguery would be a decisive factor in the decay of Athenian power.

The beginning of the end was, as is often the case, an ill-conceived rush to war. In 415 BCE, during the Peloponnesian War, the assembly voted to launch the disastrous Sicilian Expedition against Syracuse, where much of the Athenian army and navy perished. It was the hero-cum-villain Alcibiades, a close friend of Socrates, who—out of selfish ambition for power—managed to persuade the assembly to take that course.

Following the calamitous outcome in Syracuse, Athenians panicked, and many lost faith in democracy, conveniently blaming those who had voted in favor of invasion. How, they asked, could you maintain an empire when the poor and ignorant had as much of a say as the rich and learned? For aristocrats who resented sharing power with common simpletons, this was the perfect time to snuff out democracy and establish rule by the best and wisest—and, of course, the wealthiest.³²

In 411 BCE, a group of Athenian oligarchs called the Four Hundred overthrew history’s first democracy. The Four Hundred assassinated key democrats and browbeat the democratic institutions into serving as the mouthpiece of the new regime, in the words of Thucydides:

Fear, and the sight of the numbers of the conspirators, closed the mouths of the rest; or if any ventured to rise in opposition, he was presently put to death in some convenient way,… the people remained motionless, being so thoroughly cowed that men thought themselves lucky to escape violence, even when they held their tongues.³³

The coup of the Four Hundred was history’s first confirmation that free speech is the premier victim of tyranny and oppression. It would not be the last.

It is a testimony to the strength of the Athenian commitment to democracy that the coup of the Four Hundred lasted for just four months, after internal conflicts doomed the new regime. Eventually, following the eight months in which an intermediate oligarchic regime called the Five Thousand ruled, democracy was restored in 410 BCE. Just a few years later, however, in 404 BCE, the Athenians lost the Peloponnesian War against Sparta, who abolished democracy once again.

The new oligarchic regime soon developed into a bloody dictatorship of the Thirty Tyrants. If your name was not on a list of citizens that was controlled entirely by the Thirty, you could be summarily executed at any time. As many as fifteen hundred Athenian citizens were killed in the antidemocratic purge, while many others were banished or fled.³⁴ The leader of the most extreme element of the Thirty Tyrants was Critias, a relative of Plato, who, like Alcibiades, had been close to Socrates. Some conspirators protested that the methods of the Thirty were too extreme, but Critias, as reported by the pro-oligarchic Athenian historian Xenophon, dismissed such bleeding-heart concerns:

If anyone among you thinks that too many people are being put to death, let him consider that where governments change these things have to happen. It is inevitable that those who are changing the government here to an oligarchy should have most numerous enemies… because the common folk have been bred and reared in a condition of freedom for the longest time.³⁵

Athens managed to overthrow its oligarchic oppressors again the following year, but the two periods of tyranny in close succession left the Athenians anxious to defend their hard-won democracy and less tolerant of dissent. This may also explain why the speech-loving Athenians came to execute their most prolific practitioner of parrhēsía.

Historians have long debated why the Athenians decided to execute Socrates at the ripe age of seventy. He had been speaking in public for decades. Why, then, would Athenian democrats, supposedly committed to uninhibited speech and fresh from surviving two murderous dictatorships, copy the tactics of the hated oligarchs by executing a man for his opinions?

In 399 BCE, a man named Meletus indicted Socrates by a graphē asébeia, which was a public action for impiety. The indictment read: “Socrates is guilty of refusing to recognize the gods recognized by the state, and of introducing other new divinities. He is also guilty of corrupting the youth. The penalty demanded is death.”³⁶

If we are to believe Plato—and there are reasons to be cautious, as he was Socrates’s devoted pupil—Socrates prophesied his fate, knowing that his insistence on pursuing what he saw as truth and justice rubbed many powerful Athenians the wrong way. In Plato’s Gorgias, written almost twenty years after the death of Socrates, Socrates states that he might be dragged into court by “a wicked man,” and condemned to death because “the speeches I make… do not aim at gratification but at what’s best instead of what’s most pleasant.”³⁷

In addition, Socrates often claimed to have an inner voice—his daimónion—that prevented him from making choices that were wrong or harmful. This supported Meletus’s accusation that Socrates proselytized his own secretive religion, undermining the accepted religious values of the democratic city-state and angering the gods. That was a step too far for the Athenians, for whom religion and politics were not strictly separate. To make matters worse, five of Socrates’s friends were convicted of profaning the Eleusinian Mysteries and mutilating sacred religious statues in 415 BCE. All of these factors added weight to the impiety charge, which Cambridge professor Paul Cartledge argues was the decisive element of the trial.³⁸

Classicist Mogens Herman Hansen, on the other hand, makes the case that Socrates’s trial was politically rather than religiously motivated, and that he was found guilty by association, having developed close relations with Critias, Alcibiades, and a number of other prominent oligarchs who had actively opposed democracy.³⁹ According to Xenophon, these relationships were brought up by Socrates’s accusers during the trial. So too was Socrates’s criticism of the way magistrates were chosen by lot rather than by election based on wealth or expertise, which smacked of oligarchy to the Athenians who had only recently rewon democracy at considerable cost.

In Socrates’s defense, it should be said that he fought bravely for Athens during the Peloponnesian War and had refused to participate in an extrajudicial execution during the rule of the Thirty Tyrants—who had also prohibited Socrates from philosophizing in public. This was arguably proof that he was not unpatriotic, but it did not prove that he was not an antidemocratic partisan. Socrates was found guilty and sentenced to execution by drinking poisonous hemlock. Thus was born the first recorded martyr for free speech.

We may never be able to determine authoritatively why Socrates was executed. But if we accept that the preceding coups and the fear of resurgent antidemocratic forces spurred Athens to silence permanently a prominent political voice, then the trial of Socrates reveals that the most important of democratic values—free speech—is also the most vulnerable.

Democracies may be as oppressive as oligarchies if the right of the individual to challenge the prevailing ideas and morals of the majority is set aside. Safeguarding speech requires checks and balances that are strong enough to temper the fears and passions of a populace such as that which wielded direct political and judicial power in Athens. Once the civic commitment to parrhēsía broke down, the fine line between egalitarian democracy and revanchist mob rule was blurred and those who, like Socrates, offended the deepest convictions of their fellow citizens were at the mercy of popular opinion.

This was one of the chief lessons that James Madison and Alexander Hamilton would later draw from Athenian democracy, which they viewed with deep skepticism. In Federalist No. 55, Madison posited, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”⁴⁰

Liberty or License? Free Speech in Ancient Rome

Freedom of speech may have originated in the democracy of ancient Athens, but when Enlightenment thinkers developed justifications for free speech in the early eighteenth century, they generally looked to ancient Rome for precedent. Roman champions of republican values, such as Cicero, Cato the Younger, and the “liberator” Marcus Brutus, were idealized by French philosophes, English Whigs, and the American Founding Fathers, while Julius Caesar and the first Roman emperors Augustus and Tiberius became synonymous with despotism.

The Roman Republic was established around 509 BCE, when the Romans expelled their last king and swore never to be ruled by a monarch again.⁴¹ Whatever the exact date of its founding, the Roman Republic lasted some five hundred years. When it transformed into an empire, the Western half endured for an additional five hundred years, and the Eastern half for almost a thousand.

The first Roman Republicans were at once thin-skinned and heavy-handed when it came to offensive speech. Around 450 BCE, the basic laws of the early Republic were codified in the Twelve Tables, which touched upon speech. Take the eighth table: “If anyone shall have slandered or libeled another by imputing a wrongful or immoral act to him, he shall be scourged to death.”⁴² It appears the early Romans had no problem applying sticks and stones to break the bones of name-callers.

Where the Athenian democracy was bottom-up, direct, and egalitarian, the Roman Republic was top-down, hierarchical, and elitist. In the various popular assemblies responsible for approving laws and electing magistrates it was not “one man, one vote.” The citizens voted in collective blocs based on tribe or class. In stark contrast to the Greek concept of isēgoría