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Journalism of Courage
Free speech is tricky business. No matter how enlightened the political leaders of a society, they inevitably convince themselves that now freedom of speech has gone too far. No wonder that the first amendment made to the Indian constitution, was with regard to freedom of speech. Ironically, the plea for the change came from the very makers of the Constitution, who had ratified it merely 16 months back. Tabled by Jawaharlal Nehru, the proposal sought to put restrictions on the clause guaranteeing freedom of speech to all citizens on the grounds that it was restricting social change.
With Elon Musk striking a deal to buy Twitter, an age-old debate around free speech has emerged once again. Musk calls himself a ‘free speech absolutist’. “Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated,” wrote Musk in a statement following his acquisition of the social media giant. And yet a day later he clarified with the statement, “By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law.”
The debate around free speech seems glaring in the face of new age technology. Its roots, however, go deep into antiquity.
It is as early as the fifth century BCE when we see values of democracy and free speech being formalised for the first time in a city-state. This was in Athens where democracy in some form existed from 507 BCE to 322 BCE. The Athenians had two different concepts of free speech, isegoria and parrhesia, which often overlapped with each other. Isegoria referred to equality of public speech and was exercised mainly inside the Athenian Assembly. Parrhesia on the other hand, translated as uninhibited speech, allowed citizens to hold honest public opinions outside the assembly, including the spheres of theatre, philosophy and literature.
Political scientist Arlene Saxonhouse in her book, ‘Free speech and democracy in ancient Athens’ (2005) suggests that the practise of free speech in Athens through isegoria and parrhesia was not a protection against a government that could tyrannise over the people. “Rather, the practise of free speech was entangled in the egalitarian foundations and participatory principles of the democratic regime of the Athenians, a regime that emphasised equality, not rights,” writes Saxonhouse. “Freedom of speech in Athens is the opportunity for those who are considered equals to say openly whatever they may think in a world of equal citizens.”
Jacob Mchangama in his book, ‘Free Speech: A history from Socrates to Social Media’ (2022), writes that one of the most noteworthy champions of parrhesia was the famed orator Demosthenes. His surviving speeches are known to mention the word 26 times, which is more than any other Athenian statesman. For Demosthenes, a functioning democracy was centred around open debate, which he believed led to truth. Free speech, Demosthenes believed, is what distinguished Athens from their rival, the oligarchic Sparta. While Athenians were free to criticise their own constitution and praise the Spartan one, Spartans could only praise their own, he is known to have remarked.
Despite its many virtues, Athenian democracy was not without its limitations. For instance, those who proposed legislations in the assembly that went against the established laws could be subject to punishment through a legal procedure known as graphe paranomon.
The limitations of the Athenian value of free speech was most evident in the prosecution of the philosopher Socrates in 399 BCE for his religious and political ideals. The latter, however, held on dearly to the Athenian value system even when faced with a death sentence. Defending his right to free speech to the jury, Socrates is known to have said, “’If you offered to let me off this time on condition I am not any longer to speak my mind… I should say to you, “Men of Athens, I shall obey the Gods rather than you.”
The democratic ideals of Athens received their first blow in the wake of the city-state’s disastrous defeat in the Sicilian campaign of 419 BCE. Athenians panicked and some among them blamed the idea of equal sharing of power with all for their ruin. In 411 BCE, a group of Athenian oligarchs, also called the Four Hundred, overthrew the world’s first democracy. Even though the Four Hundred remained in power for a very short time, Athenians’ belief in democracy had been shaken. However, some form of democracy did exist until the Macedonian army of Phillip II conquered Athens in 338 BCE.
Mchangama in his book suggests that even though freedom of speech originated in Athens, “but when Enlightenment thinkers developed justifications for free speech in the early 18th century, they generally looked to ancient Rome for precedent.” Unlike the Athenian model of democracy though, the Roman republic was hierarchical and elitist. One of the foremost proponents of this model was the philosopher, Cicero, who was all in favour of free speech as long as the elite remained in control.
Despite it being elitist, ancient Romans had a special place for the idea of liberty. Roman citizens, regardless of rank, could not be subject to domination and had the rights to protest the decisions of those in power.
The invention of the printing press in 1450 CE revolutionised knowledge making in many ways. It also complicated censorship. Suppression of the written word existed earlier as well, but with the printing press, the amount of published material grew manifold. Professor of English Literature Randy Robertson in his book, “Censorship and conflict in 17th century England: The subtle art of division” (2010) notes that clerical and lay controls over the printed word existed from as early as 1479 CE. HenryVIII, for instance, assumed a virtual monopoly over printing, offering patents to favoured printers and regulating the trade.
The seventeenth century though was “censorship’s great moment” in England, notes Robertson. “The government had a battery of legal instruments available in its campaign against seditious writers, printers and booksellers,” writes Robertson.
During this time England became a hotbed for radical arguments around freedom of speech and religion. The pioneers were the religious dissenters. The Baptist Thomas Helwys for instance was one of the earliest proponents demanding the church and state to be kept separate. Helwys called for complete freedom of conscience in his book, ‘A short declaration of the mystery of iniquity’. He sent the book to the king James I with a personal message that said, “the King is a mortal man and not God…therefore he hath no power over the immortal souls of his subjects to make laws and ordinances for them and to set spiritual Lords over them.” The act resulted in him being put behind bars where he died in 1616.
There were also those from among the elite who called for political freedom of speech. Prominent among them was the voice and words of the barrister and politician Sir Edward Coke. In response to a decree by James I in 1621 where he claimed that he had the authority to punish any member of Parliament for their ‘insolent behaviour’, the Parliament issued a fiery protest penned down by Coke. He insisted that “every Member of the House of Parliament hath, and, of Right, ought to have freedom of speech.” As Mchangama notes, even this “Roman” concept of freedom of speech for the elites stood rejected for now.
Charles I who succeeded James I carried forward this tradition of suppression in even more aggressive ways. Charles I was of the firm belief that by royal prerogative he could rule without the advice and consent of the Parliament. Tired with the many protests against taxes and religious restrictions, he dissolved the Parliament in 1629, instituting 11 years of personal rule. He used the Star Chamber, the infamous court of law, most effectively to clamp down upon his detractors. A 1937 Star Chambers decree prohibited the print, import and sale of any seditious or “offensive” books or pamphlets, or be faced with fine, imprisonment or corporal punishment.
When the parliament was reinstated in 1641, one of the first decisions taken by it was the abolition of the Star Chamber and the prepublication licensing system. Mchangama notes that the decision sparked a huge increase in publications. “1641 broke the English record of most published titles in one year with 2177 catelogued titles. 1642 broke the record again with a staggering 4188 titles,” he writes.
In 1643, the Parliament reintroduced licensing, targeting “false, forged, scandalous, seditious, libelous, and unlicensed papers, pamphlets and books to the great defamation of religion and government.” It prompted the poet John Milton to pen Aeropagitica, a plea for press freedom that was published, unlicensed the following year.
Milton, like his Greek and Roman predecessors, believed that censorship led to truth being denied. In a famous passage from the text he wrote, “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” The Aeropagitica was largely ignored during its own time, but was revived towards the end of the century when the Bill of Rights was introduced and licensing saw its end.
Robertson in his book suggests that the Aeropagitica, despite being radical for its time, also had its shortcomings. It denied freedom to Roman Catholics and perhaps even to royalists and it allowed for the suppression of books that prove “monsters” upon publication. However, in calling for liberty for unlicensed publishing, it was revolutionary, since most parliamentarians were of the belief that their fight was against the king and his advisors.
Much of the second half of the 17th century in England was replete with religious conflicts between Protestants and Catholics. In the late 1670s and early 1680s a wave of persecutions swept through the country, resulting in at least 24 Catholics being executed for treason. It is only towards the end of the century that some sort of religious tolerance seeped into Europe, much of it being inspired by the writings of the philosopher John Locke.
In 1689, when Willian III and Mary II were invited to become joint sovereigns of England, they were presented with the Bill of Rights by the Parliament. A landmark act in the Constitutional law of England, it laid down the limits on the power of the monarch and provided for the rights of the parliament including that of free elections and free speech. It was an important step in codifying free speech as a fundamental right, even though egalitarian free speech was still far away.
The printing press reached the European colonies much later, but when it did, it came to be just as regulated as it was in Europe, if not more. The first printing press in America was set up in Cambridge, Massachusetts, in 1683 and was under the Harvard College. The colony was swift to establish a board of censors to regulate printed material. British common law and colonial laws were used to keep an eye out for seditious material criticising the government or any kind of false news.
Much like in Europe, in the American colonies as well, regulation over printed material followed control over religious dissenters. “The first colony to establish freedom of religion was Rhode Island, founded by the renegade Puritan Roger Williams in 1636 after he was kicked out of Massachusetts for spreading ‘new and dangerous opinions’ ,” writes Mchangama. Similar advocacy of religious freedom emerged in other states like Maryland and Pennsylvania. However, as Mchangama points out, freedom of religion was not followed by unbridled freedom of speech. In Pennsylvania and Maryland for instance, there existed stringent laws against religious hate speech. Nor was there any political freedom of speech. Words of contempt against those in authority were seen as a crime punishable by law.
It was in this atmosphere of intense scrutiny and censorship that Benjamin Franklin in 1737 CE published an article in the Pennsylvania Gazette titled, “On Freedom of Speech and the Press”. “Freedom of speech is the principle pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins,” he wrote.
One of the most important events that shaped the future of free speech in America was the trial of John Peter Zenger, a German immigrant who started the New York Weekly Journal. Zenger in his articles made hard hitting mockery of the colonial governor, William Cosby. For this, Cosby sought indictments against Zenger for ‘seditious libel’. Even when in jail, awaiting his trial, Zenger continued writing his paper through instructions to his wife.
During his trial Zenger was defended by Andrew Hamilton, one of the finest trial lawyers in the colonies. It was Hamilton who convinced the judges that while it is true that Zenger wrote the articles, it is also fact that the allegations against Cosby were true. In America at this time, the English common law provided that truth is no defense against seditious libel. Hamilton convinced the judges to strike down this law and Zenger was acquitted. The verdict was a milestone for press freedom in America. It established what is now firmly a part of US law, that truth cannot be labeled libelous.
The American revolution of the late 18th century, as many political spectators of the time have commented, was a battleground of ideas, newspapers and pamphlets. Print technology had both revolutionalised and democratised the American public sphere.
Even before the Declaration of Independence was adopted on July 4, 1776, several states were already drafting their own constitutions and bill of rights. Freedom of speech and press in some form was part of the constitutions drafted by Virginia, Delaware and Pennsylvannia. “The people have the right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained,” declared the constitution of Pennsylvania (as cited by Mchangama).
The first constitution of America was ratified by all 13 colonies in 1781. By 1787 the anti-federalist movement raised several oppositions against the constitution, which they believed provided unrestricted power to the president of the country, which they feared could evolve into a monarchy. It was also felt that freedom of speech, as codified in the articles of the confederation, applied only to the members of the Congress, much like the English Bill of Rights. Thereafter, the anti-federalists believed that it was time to protect all Americans’ right to free speech from the government.
Consequently, the American Bill of Rights was born, comprising the 10 amendments pointed out by anti-federalists in the constitution. The first amendment laid out explicitly that all citizens were to be guaranteed freedom to religion, speech, press and peaceful assembly.
“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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In drafting the Indian constitution, the founders of modern India were heavily influenced by the American and British constitutions. “Several members of the Constituent Assembly vividly recalled, and had even experienced, the colonial British administration’s attempts to stifle the freedom movement using oppressive anti-sedition laws,” writes Professor of Law, Niru Sharan in her paper, “Freedom of speech and expression; Indian constitution: An overview” (2015). Consequently, there was never any doubt whether the constitution should protect free speech.
However, the Constituent Assembly was divided on whether to include specific grounds that would enable the government to restrict these freedoms. While some felt that including them would negate the content of these freedoms. “Others, however, favoured incorporating them because they feared that absolute freedom would be dangerous given India’s enormous poverty, illiteracy, and economic problems. Ultimately, it appears that many members voted to include the grounds influenced by the “needs of the time,” writes Sharan.
Consequently, Article 19 (1) (a) of the Indian constitution guarantees that “all citizens shall have the right to freedom of speech and expression.”
Interestingly, despite the near unanimity of the decision to include freedom of speech in the Constitution, this was the first clause of the constitution that came to be amended, barely 16 months after it was adopted.
The First Amendment Act of the Indian Constitution remains to be one of the most fervently contested changes to the Constitution that was debated over 16 days. The bill for the amendment was moved by Nehru on May 16, 1951 with the thundering words, “somehow we have found that this magnificent constitution that we had framed was later kidnapped and purloined by lawyers.”
Author Tripurdaman Singh in his book, “Sixteen stormy days: The story of the first amendment to the constitution of India” (2020) explains that Nehru’s disappointment was on account of the fact that several of the Congress Party’s most important schemes of social engineering such as zamindari abolition, nationalisation of industry, reservation for backward classes and the like, had been halted because the courts repeatedly used the freedom of speech clause against the government.
“In Delhi, the government’s attempt to censor The Organiser, an RSS newspaper, had been countermanded. In Bombay, the government’s order banning Cross Roads, a left leaning weekly critical of Nehru and the Congress government had been quashed,” writes Singh.
By early 1951, with elections looming in the near future, Nehru grew increasingly exasperated. “It is impossible to hang up urgent social changes because the Constitution comes in the way,” he wrote to his chief ministers, as cited in Singh’s book. “We shall have to find a remedy, even though this might involve a change in the constitution.” “In his (Nehru’s) views, wider social policy had to be determined by the government, and neither the courts not the constitution could be allowed to stand in the way,” writes Singh.
The bill proposed several modifications, the most important among them being the grounds on which freedom of speech could be curbed. These included public order, the interests of the security of the state and relations with foreign states.
Nehru justified the modifications, especially the one related to public order, as a response to the Partition and the communal violence triggered by it. He also pointed out to the Communist Party supporting an armed insurrection by peasants of Telangana.
The modifications being sought, however, were quick to garner criticism. The strongest voice of critique came from Syama Prasad Mukherjee, who was then affiliated with the Hindu Mahasabha. The amendment he charged was “cutting at the very root of the fundamental principles of the Constitution.” He called it, “the beginning of the encroachment of the liberty of free India.” Singh in his book notes that in fiery exchanges Nehru accused Mukherjee of being a liar, while Mukherjee called Nehru a dictator. The battle raged on for the next two weeks, not just inside the Parliament, but also outside amongst the press, academics and lawyers, who accused the Congress of stifling all criticism.
Eventually the bill was passed on June 2, 1951 with 228 yes, 20 noes and a large number of abstentions. Singh notes what came to pass was nothing short of a radical rewriting of the Constitution. “The relationship between the state and the citizens was altered for all time,” he writes. “Free speech was curtailed- no longer would it be necessary for the security of the state to be seriously undermined for it to proscribe free expression, it merely had to be in its interests to now do so.”
Further reading:
Jacob Mchangama; Free Speech: A History from Socrates to Social Media; Basic Books; 2022
Arlene W. Saxonhouse; Free speech and democracy in ancient Athens; Cambridge University Press; 2005
Randy Robertson; Censorship and Conflict in Seventeenth: The Subtle Art of Division; Pennsylvania State University; 2010
Niru Sharan; Freedom of Speech and Expression; Indian Constitution; An Overview; BEST, International Journal of Humanities, Arts, Medicine and Sciences; 2015
Tripurdaman Singh; Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India; Penguin Random House India; 2020
