Posted by David Post:
Jefferson and Free Speech:
http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1229965480
One of the threads in the comments on [1]the postings regarding a
recent obscenity conviction (upheld by the 4th Circuit) for "receipt
of obscene cartoons" involved my friend Mr. Jefferson, and his views
on the First Amendment and "the freedom of speech." [2]One reader
added a helpful link to Jefferson's Kentucky Resolutions, in which he
argued that the Sedition Act, "which does abridge the freedom of the
press, is not law, but is altogether void, and of no force."
I always like to comment on Jeffersoniana, and in this case his views
really do help to explain my own. I spend a fair bit of time in [3]my
book on Jefferson and the Internet -- you haven't forgotten to get a
copy of my book, have you??! -- talking about Jefferson's free speech
positions, both because they're interesting in and of themselves and
because they're of particular relevance to the many speech-restricting
laws that have been enacted in response to Internet communication. I
devote a chapter late in the book to comparing Jefferson's views on
free speech law with his views on intellectual property law -- the two
issues that "have been featured in virtually all of the Internet�s Big
Cases, the legal disputes generating lots of public debate and
commentary, the ones that made it onto the onto the docket of the
Supreme Court or the front page of the New York Times, during the
first couple of decades of its existence."
Here's an excerpt (Jefferson's words in italics) [I've posted [4]a
copy of the free speech discussion at the Jeffersonsmoose.org website,
if you want to see the full discussion]:
In no subjects in the law was Jefferson more interested, and about
no subjects in the law did he have more interesting and important
things to say, than these two [i.e., free speech and intellectual
property]. His views regarding the line between permissible and
impermissible speech were pretty simple � there shouldn�t be any
line, because there shouldn�t be any impermissible speech.
Jefferson was America�s first, and probably its greatest, First
Amendment absolutist; he wasn�t kidding when he said were it left
to me to decide whether we should have a government without
newspapers or newspapers without government, I should not hesitate
a moment to prefer the latter. Not even a moment!! To preserve the
freedom of the human mind & freedom of the press, every spirit
should be ready to devote itself to martyrdom; for as long as we
may think as we will, & speak as we think, the condition of man
will proceed in improvement.
It was all an inter-connected whole, for Jefferson � republican
self-government, freedom of speech, freedom of conscience, and
freedom of the press. You couldn�t have one without the others;
they were inextricably bound together into a single system, and
they would stand, or fall, together. The principle of
self-government � government not imposed on the governed but
operating with the consent of the governed � meant that everyone
had a stake, and an equal stake, in governing: The true foundation
of republican government is the equal right of every citizen in his
person and his property, and in their management. The mother
principle, he called it: Governments are �republican� only in
proportion as they embody the will of their people and execute it.
Everyone, henceforth, gets to form his or her own opinions on all
questions of public import, and regarding the administration of the
laws: No other sure foundation can be devised for the preservation
of freedom and happiness [than to] enable every man to judge for
himself what will secure, or endanger, his freedom.
It is honorable for us to have produced the first legislature who
had the courage to declare that the reason of man may be trusted
with the formation of his own opinions [and] that man may be
governed by reason and truth. Our first object should therefore be,
to leave open to him all the avenues to truth. The most effectual
way hitherto found is the freedom of the press. It is therefore,
the first shut up by those who fear the investigation of their
actions. . . .
Unrestricted public discourse, and an unfettered press, were the
only �avenues to truth,� because nobody ever knows, in advance,
where the truth may lie. Reason and free enquiry are the only
effectual agents against error. In a Jeffersonian world, the
government simply has no role to play in telling us what we may
think or what we may say. Freedom of discussion, unaided by power,
is sufficient for the propagation and protection of truth. It is
error alone which needs the support of government. Truth can stand
by itself. Governments may trample upon these rights of free speech
and free thought and free inquiry by force, but they can never do
legitimately, by right.
The right to speak and to think as we wish is a �natural right�; it
is neither given to us by law, nor derived from law, but antecedent
to it � lower down in the protocol stack, if you will, than law. It
derives not from the statute books but from what Jefferson called,
in the Declaration of Independence, the laws of Nature and of
Nature�s God � it is just in the �nature� of things, the way the
world is, that if you bring two human beings together, they will
think, and they will attempt to communicate with one another about
what they are thinking, even without any law to help them. . . .
Humans communicate with one another not because the law enables
them to do so; they communicate with one another because � well,
because that�s the kind of beings we are, and that is what is in
our nature. Law�s job is not to enable that communication to occur
but to protect it when it does occur � that is one of the �objects
for the protection of which� we make law. . . .
And finally, some powerful positive feedback: only by forming a
government that doesn�t trample upon these rights can we preserve
our ability to create a government that doesn�t trample upon these
rights. Where the press is free, all is safe. Our liberty depends
on the freedom of the press; it cannot be limited without being
lost. Limit our freedom to think and speak as we wish, and
republican government can�t work � that is, it can�t produce a
government that will protect and preserve our right to think and
speak as we wish. No other sure foundation can be devised for the
preservation of freedom and happiness [than to] enable every man to
judge for himself what will secure, or endanger, his freedom.
Without this no republic can maintain itself in strength. [The
United States] will demonstrate the falsehood of the pretext that
freedom of the press is incompatible with orderly government. To
open the doors of truth, and to fortify the habit of testing
everything by reason, are the most effectual manacles we can rivet
on the hands of our successors to prevent their manacling the
people with their own consent. Where the press is free, and every
man able to read, all is safe. . . .
To a Jeffersonian, then, free speech questions are always
simultaneously (a) of supreme importance and (b) pretty easy. The
answer always (or almost always) is simple: The more protection
for, and the fewer the restrictions on, speech, the better. Lay
down true principles, and adhere to them inflexibly.
[Not so for intellectual property, by the way -- but that's a
different matter entirely]
References
1. http://volokh.com/posts/1229871425.shtml
2. http://volokh.com/posts/1229871425.shtml#505718
3.
http://www.amazon.com/gp/product/0195342895?ie=UTF8&tag=inseaofjefsmo-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0195342895
4. http://jeffersonsmoose.org/forums/viewtopic.php?f=19&t=11
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