John Nerone. Encyclopedia of Journalism. Editor: Christopher H Sterling. Sage Publications, 2009.
In early modern Europe and North America, many conflicts over freedom of expression occurred, occasioned by the development of the printing press, on the one hand, and democratic theory on the other. By the twentieth century, a standard history of these struggles had become canonical for political theorists as well as for the occupations that are most invested in freedom of expression—lawyers, publishers, librarians, academics, religious activists—and journalists.
Journalism as a practice and an institution has been fundamentally shaped by these struggles. Positioning itself as the gateway between governments and their publics, journalism has defined itself in part as the instrument people rely on to acquire the information they need to protect themselves from and to participate in government; journalism also has thought of itself as representing the voice of the people. The culture of journalism pivots on struggles over government control of information and expression. Journalism’s identity relies on a collective memory about its role in continually expanding the area of free expression.
Conceptualizing the Notion
Several different approaches to the history of freedom of expression are common. The oldest and best established is a liberal approach, sometimes called the “Whig theory of history.” This theory begins with the premise that power, including the power of government, is always hostile to individual liberty. In the Whig theory, history is the story of the continual advance of liberty. This viewpoint is rooted in liberal political philosophy, which holds that liberty advances because people are free by nature, and “ideas want to be free” as well.
One variant of the liberal approach was put forward by the 1956 book Four Theories of the Press by Siebert, Peterson, and Schramm. It identifies a “libertarian” theory of the press, which has confidence in the rationality of free individuals and proposes that minimal government interference will be the best policy for a media system. It contrasts the libertarian theory with the “authoritarian” theory on the right and the “Soviet communist” theory on the left, which both call for massive oversight and leadership of the media system. The Four Theories model is somewhat different from the “Whig” model, though, in that it sees the rise of the mass media requiring a modification of “libertarian” theory into a fourth theory, the “social responsibility theory,” which distinguishes between the freedom of expression of persons and the freedom of the media, and concludes that the latter is derived from and justified only to serve the former.
On the opposite end of the political spectrum there is a series of critical—as opposed to liberal—approaches to the question of freedom of expression. These approaches dispute a key point shared by liberal theories: that the realm of ideas and expression is relatively autonomous from the realm of material wealth and power. The classic expression of this position comes from German social scientists Karl Marx and Friedrich Engels, who declare in the German Ideology that the ruling ideas of any age are the ideas of the ruling class, who own the mental as well as material means of production. A similar position is taken by feminist critics and some proponents of critical race theory, who understand public discourse as a “zero-sum” game, in which more speech for some means less speech for others. From a critical perspective, the history of freedom of expression can be understood only as a feature of a larger history of political struggle among groups identified by race, class, and gender.
A third approach, emphasizing the historical development of the “public sphere,” mediates between liberal and critical approaches. Inspired by the work of German sociologist and philosopher Jürgen Habermas, thinkers who use the concept of the public sphere to talk about freedom of expression emphasize the importance of the development of a space of public deliberation. Like critical scholars, they point to the importance of economic development, social classes, material struggles over political power, and the material development of media forms as factors in the creation of a public sphere and the norms of public communication that govern it. Like liberal scholars, on the other hand, they point to the importance of free expression and rational deliberation within the public sphere.
Each of these approaches projects a different historical view. But any account of what we now call freedom of expression muddles the distinctions on which these approaches pivot. This is because freedom of expression is itself a constructed object. The term freedom of expression is a relatively recent invention. But with its construction came a kind of obligation to create a lineage for it.
Development
One might usefully begin the history of freedom of expression with the European struggles over control of information at the end of the medieval period. John Milton’s Areopagitica (1644), one of the first arguments in English for freedom of the press, begins with a history of censorship, which, after touching on and then dismissing incidents in the ancient and medieval worlds, argues that the true origin of censorship came with the Roman Catholic office of the Inquisition. Milton’s history is disingenuous, of course. His rhetorical purpose was to identify censorship with an institution that his target audience would loathe; he tried to deflect attention away from the fact that all European governing institutions also constructed systems of press regulation around the same time.
The European invention of the printing press in 1450 seems to have been the cause for the invention of press regulation. Printing was immediately understood to be a technology with deep implications for the flow of ideas and information. Historian Elizabeth Eisenstein has argued influentially that the printing press was an “agent of change,” altering the cultural environment by introducing “fixity,” her term for the permanence and standardization associated with printed work, multiplying the number of texts that any individual could conveniently encounter, and thereby producing a tremendous cross-fertilization that in turn nurtured the Renaissance and Reformation, the scientific revolution, the growth of the nationstate, and the crystallization of vernacular languages. Other scholars have challenged Eisenstein. Historian Adrian Johns, for instance, argues that rather than fixity, printing’s first effect was to multiply forgeries and piracies. According to Johns, only when a regime of copyright law stabilized the print marketplace did fixity occur.
For the history of freedom of expression, it’s not the printing revolution per se that’s important, but the conflict between printing and the law. Established authorities perceived printing as potentially threatening and tried to construct webs of control. The regime of copyright law that Johns cites was a strand within one such web. In England, the larger web combined elements of church, state, and the private sector. Beginning with the Tudor monarchs in the sixteenth century, and formalized in the Star Chamber decree of 1586, England controlled printing through pre-publication licensing by officials operating under the Crown’s Privy Council and the Church of England. The Crown also granted a monopoly to the Stationers’ Company, the trade organization of printers and booksellers. The Stationers’ Company in turn policed its membership, taking care not to alienate the authorities. Other nations achieved a different balance of mechanisms of control, but all pursued a system of prepublication censorship.
Nevertheless, these systems of press control proved ineffective in times of strain. Printing was too mobile a technology for Europe, with its competing jurisdictions and geopolitical and religious divisions. Cultural historian Robert Darnton has documented the network of print distribution that allowed Swiss publishers to produce Enlightenment works for the French market. Earlier, printers in Amsterdam had produced English-language news-books for the public in England. Moreover, within any particular country, patrons with means could find sympathetic or ambitious printers willing to produce contraband publications.
So regulation was unable to prevent movements from finding expression in print. The Reformation and the seventeenth- and eighteenth-century revolutions all featured bursts of publication activity; in some cases activists in these movements made freedom of expression a cause in itself. In England, the period of revolution that began in 1640 saw the collapse virtually overnight of the complicated Tudor and Stuart system of regulation and an explosion of discordant newspapers and pamphlets. When the revolutionary Parliament moved in 1642 to create its own system of licensing, John Milton responded with Areopagitica, which argued against prepublication licensing, although it allowed that the state had a legitimate right to burn publications that advocated “Popery, and open superstition.” This outburst of relatively uncontrolled publication proved temporary, and after the Stuart monarchy was restored in 1660 firmer regulations were put in place. But these also eventually fell. The creation in practice of freedom of political expression often resulted from accidental political events. In England, the failure in 1695 of competing parties in Parliament to negotiate a renewal of the Printing Act produced de facto freedom of the press. The parties, however, remained suspicious of the value of free public discussion of politics, and in 1712 adopted a stamp tax that in effect doubled the price of newspapers, substituting economic regulation for content regulation.
In many western European countries, it proved difficult to silence empowered groups. As new bourgeois classes appeared, they asserted their rights to freedom of conscience, political participation, and, therefore, free expression. Alongside the achievement of enfranchisement, universalistic explanations developed to legitimate these liberal policies.
Some of these explanations appealed to natural rights. Philosophers such as John Locke argued that the rights to “life, liberty, and estate” were rooted in natural law. In essence, men owned themselves, and by extension their labor and their thoughts, and had the right to do with them what they will. This naturalistic argument paralleled the religious argument that humans were endowed by nature with the capacity and the duty to make moral choices, and that governments should not interfere in the exercise of individual moral decisions.
In addition to these “metaphysical” justifications, liberals asserted that freedom of expression would also have practical effects. One recurring motif was that free discussion would lead toward progress because truth would prevail over falsehood in any fair contest. Another common assertion was that freedom of expression was necessary to maintain the vigor of beliefs in the face of a tendency toward bland conformity. This social need for lively belief also, it was argued, required toleration of unorthodox positions, especially religious ones. For the most part, early liberals presumed that there would be limits to free expression. For the most part, they presumed that non-Christians, nonwhites, women, and the poor would not participate in public discourse. They also assumed that there would be a certain etiquette to the public sphere marked by an appeal to disinterested reason.
Transformations
The public sphere, according to Habermas, came into existence in early modern Europe as the realm of private life/civil society separated itself from the state, which was in the process of transforming itself from the person and household of the monarch to a permanent bureaucratic structure. This space between civil society and the state was to work as both a steering mechanism for the state and a buffer zone protecting private rights. It could work as a steering mechanism because it allowed citizens to communicate freely on matters of common concern. It could work as a buffer zone because it kept the government under public supervision. In this liberal model of the public sphere, any empowered individual could enter public space, but only as a “citizen.” Because a separation of civil society from the state was constitutional to the public sphere, citizens were expected to repress or “negate” their purely personal interests when entering it: they were to speak as “no one,” or as “anyone.” And they were to assume that everyone was watching. So the norms of public discourse assumed that public speech was by no one for everyone. This style of speech is exemplified by the Federalist papers, for instance—anonymously authored by “Publius,” published in New York newspapers with the expectation of republication throughout the nation, and composed in calm lawyerly language.
One particular area in which freedom of expression was jealously guarded was legislative privilege. It was a traditional right of legislatures like the House of Commons to enjoy freedom from prosecution in their deliberations. Ironically, this right meant also freedom from public supervision, and was interpreted to prevent all but authorized publications of proceedings. The eighteenth century saw continual maneuverings to publish legislative proceedings, with legislatures attempting to muzzle news outlets in the name of freedom of expression.
The bourgeois revolutions of the eighteenth century yielded an embodied philosophy of free expression in the form of bills and declarations of rights. The United States protected religion, speech, press, assembly, and petition in the first amendment to its constitution (1791). The French Declaration of the Rights of Man (1789) includes the following protections:
No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.
The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.
Such catalogs typically asserted that these rights were natural or divinely ordained. But the logic of the Enlightenment also included an impulse toward empiricism that worked to undermine the notion of natural rights. Arguing that the book of nature could be understood without the assistance of divine revelation, the scientific revolution that accompanied the political revolutions in the western world called into question all notions of divine order.
Utilitarian Notions and Tyranny of the Majority
If rights could not be justified by an appeal to the natural order, then more utilitarian notions of the grounding of rights were called for. In England, philosophers James Mill and his son John Stuart Mill articulated such notions, arguing that acknowledging a right to free expression had the practical effect of promoting the discovery of new truths and prolonging the liveliness of existing truths, resulting in a more dynamic social order and a more equitable political order. But utilitarian justifications could always be falsified by experience. One could argue that a panoptic society was more functional than a libertarian one. Likewise, in utilitarian or consequentialist notions of free expression, there would always be a question of balance. Free expression would be just one among a host of other goods, like the right to privacy or property rights. A utilitarian justification of free expression was falsifiable by practice. In the wake of the eighteenth-century establishment of freedom of expression, as well as other individual rights of private security and political participation, a series of observers described shortcomings in the practice of free democratic societies. The most famous of these observations are Alexis de Tocqueville’s Democracy in America and John Stuart Mill’s On Liberty. De Tocqueville noted that freedom of the press had produced explosive growth in the number of newspapers in the United States, but that this had resulted in a general lowering of the quality of journalism. Any individual newspaper or journalist had little authority, but cumulatively the press was very powerful indeed. Its power was the power of democracy, a system in which a raw majority of the people could exercise power in every realm of social, cultural, and political life. Mill echoed de Tocqueville’s alarm over the potential “tyranny of the majority.” Repeating his father James Mill’s arguments about the importance of free expression for the continual progress toward truth in a dynamic society, Mill pointed out that a “tyranny of custom” had appeared in Victorian England, and that this threatened the independence of the strong individuals on the creative periphery of the society necessary to drive continued development.
The rights talk of the bourgeois revolutions had been majoritarian. The point of protecting free expression was to allow the majority to deliberate, to form public opinion, and to assert it in the face of constituted authority. Constitutional law professor Akhil Reed Amar has convincingly argued that the U.S. Bill of Rights (1791) was a majoritarian document. It was this that alarmed de Tocqueville and Mill. Though neither proposed restricting freedom of expression, their critiques implied that there should be policies aimed at countering majority impulses.
By the end of the nineteenth century, the industrial west had developed a minoritarian agenda for freedom of expression. Movements and groups outside the mainstream used the notion of freedom of expression as a political tool to protect core beliefs, practices, or identities from majority pressure. Sometimes these actors concentrated on concerns that might be considered private—sex and religion were frequent flashpoints. Sometimes the stakes were political or cultural. In many cases in Britain and the United States, the key issue was class power. In Britain, property restrictions on voting and the stamp tax on publications gave a class edge to questions of equal rights. In the United States, attempts to limit the labor movement’s exercise of free expression defined the issue at century’s turn. Arguably, the twentieth-century notion of freedom of expression was invented by these outsider groups. At the same time, some of these struggles generated antiliberal notions of free expression.
In the United States, the World War I era marked a climax in the development of thinking about freedom of expression. In the background were fears about the tyranny of the majority—always also a fear of domination by the lower classes—intensified by new, more sensual media, especially motion pictures and recorded music, which seemed to undermine cultural authority by directly entering the eyes and ears of morally, culturally, and socially vulnerable populations—women, children, exhausted workers. Against this background appeared all the abuses of political communication associated with a new age of total war—propaganda in every form, and official and informal repression of dissidents. In the wake of World War I, a civil liberties coalition emerged, consisting of lawyers, academics, librarians, artists, and journalists. This coalition aimed to protect individual expression. At the same time, the experience of the propaganda effort and the failure of the news media to counter it produced a new sense of apprehension about the power of the media. Thinkers such as journalist and political commentator Walter Lippmann called for some institutional corrective for commercial media—in Lippmann’s case, expert intelligence bureaus that would provide authoritative information to decision makers.
Libertarian and Public Service Models
These quite different legacies of World War I inspired two very different liberal traditions of addressing the problem of free expression. The civil liberties movement inspired a libertarian approach. Emphasizing the protection of individual freedom from government interference, this approach predicted that allowing the broadest exploitation of free expression to every conceivable actor, including both nonmainstream voices and the emerging corporate media industries, would produce a healthy and diverse realm of public discourse.
But the suspicion of the power of the media produced a very different approach. If media were becoming larger, more monopolistic, and more powerful, as the new terms mass media and mass communications suggested, then competition in the marketplace could no longer be counted upon to provide a healthy realm of public discourse. Instead, media outlets had to be tasked with the responsibility to provide a virtual marketplace, or marketplace of ideas, also a novel term in the middle third of the twentieth century. This approach to free expression viewed individual freedom as requiring media stewardship, and amounted to a public service or social democratic vision of media freedom.
The public service model of free expression seemed in the ascendant at the end of World War II. In the United States, practical moves like the breakup of the Hollywood studio system in the late 1940s and publication of the FCC’s 1946 “Blue Book” setting standards for broadcast licensees gave concrete form to the abstract articulation of “social responsibility theory” by, among others, the Hutchins Commission, whose 1947 report, A Free and Responsible Press, is credited with crystallizing this approach. Internationally, similar developments in European countries, which had already instituted a public service regime for telecommunications and were more advanced in developing media professionalism, suggested ways of fulfilling the “right to communicate” set forth in the United Nations’ Universal Declaration of Human Rights (1948).
The UN Declaration’s wording was designed to embrace more than these two liberal traditions, however. It also suggested a different approach to free expression coming from the Marxist tradition. Marxism rejected the assertion in liberalism that the realm of ideas operates by different rules than the material realm. In the material realm, goods are distributed in roughly a zero-sum fashion—more oil or gold for you is less for me. Liberals asserted that more speech for you is more speech for me and for everyone else as well, and that the solution to any equity problem in communication is simply more speech. Marxists pointed out that liberalism’s notion of protecting freedom from government interference translated into a preservation of inequality in the private realm—more speech for the rich is less speech for the poor. So Marxists called for a redistribution of communicative resources.
Such a redistribution, while elegant in theory, was difficult to implement. In nations governed by Marxist authorities, like the Soviet Union and the People’s Republic of China, Marxist theory translated into a combination of party control of media systems coupled with a kind of professionalization of media work with the agenda of creating a realm of correct political discourse. By the 1930s in the Soviet Union and by the 1960s in the People’s Republic of China, apparently seamless systems of state-controlled media operation were in operation. These systems were supposed to be transitional, pending maturation of communist society. Few Marxists claim these systems to be appropriate embodiments of Marxist principles, which would require a less alienated body of media workers and a more responsive, less centrally controlled, and more open news and media culture. Into the twenty-first century, no mature Marxist national media system offered itself as a paradigm.
Global Free Expression, the MacBride Commission, and Right to Recognition
By the second half of the twentieth century, however, the language of freedom of expression, like the language of democratic governance, had become the default language of the international community. As the Universal Declaration attests, a global consensus endorsed something called free expression, even though many different conceptualizations of it existed. The tension between these conceptualizations played out in the 1970s and 1980s in the United Nations Educational, Scientific, and Cultural Organization, or UNESCO.
Calls for a “New World Information and Communication Order” led UNESCO to create a commission, headed by Sean MacBride. Formally called the International Commission for the Study of Communication Problems (and informally the MacBride Commission), it issued its report, Many Voices, One World, in 1980. The report acknowledged a series of imbalances in communication that paralleled imbalances in wealth, with the north controlling international wire services, international markets in film and broadcast entertainment, and consequently the flow of images and information. The report responded to the principle of the free flow of information with a plea for a “free and balanced” flow and suggested a variety of principles and mechanisms to promote it. Critics, usually speaking from liberal principles, seizing on the human rights records of some proponents and on the commission’s recommendations for licensing newsworkers and for “right of reply,” depicted the movement as a concealed attempt at endorsing censorship. The controversy contributed to the withdrawal from UNESCO of both the United States and Great Britain. In the decade that followed, the debate over the international communication and information order shifted from UNESCO to the World Trade Organization as protecting intellectual property became the key site of struggle.
A continual erosion of the public service model in western countries accompanied this shift. In the 1980s and 1990s, national telecommunications authorities were either dismantled and privatized or supplemented by privately owned commercial broadcasting and cable or satellite television and radio. The collapse of the Soviet bloc after 1989 opened a new territory to commercial media development. In some countries, media entrepreneurs acquired tremendous political influence. The rise to political power of media magnate Silvio Berlusconi in Italy marked the emergence of a new kind of “media politics.”
The MacBride Commission report and the controversy it incited showed the difficulty liberalism as an ideology experiences when the subject of free expression is shifted from the individual to the community. In the MacBride Commission, which took its initial charge from the Universal Declaration, reference was made to the “right to communicate.” Liberals note that this is different from the right to free expression. Expression doesn’t require that anyone else pay attention, and is in fact freest when no one does. Communication, on the other hand, only exists with some reciprocal action. So a right to communicate entails the imposition of a duty to be communicated with.
Within liberal societies, the parallel frontier involves the right to recognition. Nonmainstream and subaltern groups claim a right to recognition of their identity and culture by the general public or the national government, arguing that otherwise their members are denied full equality under the law. Liberals are unaccustomed to thinking of groups as rights-bearing, however. Corporations, for instance, are rights-bearing only because liberalism treats them legally as “fictitious persons”—General Motors has the same First Amendment rights as any citizen. It makes no sense to think of the Quebecois as a fictitious person, however. So on what basis can liberalism require the acknowledgment of Quebec or Canadian francophone culture?
This dilemma has been keenly felt in multicultural nations, particularly those with competing religious communities. The reception of Salman Rushdie’s 1988 novel Satanic Verses in India and the Muslim world was one such spectacular case. In 2006, the Danish newspaper Jyllands-Posten published caricatures of the Prophet Mohammed that were condemned by Muslims as blasphemous and rioting followed in numerous countries. In both cases, Muslims claimed a kind of right to recognition; liberals responded by claiming the issue to be the individual right to free expression.
Such controversies became framed by the larger question of freedom and policing in the post-9/11 age of the Global War on Terror. Although the implications have been most visible in the realms of surveillance and procedural rights, the GWOT has also marked the return of the World War I dynamic, as propaganda has been matched by formal and informal attempts to oversee and curtail certain forms of expression, especially in combat zones. In the United States, “embedding” reporters, covertly funding “expert” sources for cable news shows, planting news in Iraqi media, restricting use of cell phones and blogs by military personnel, wiretapping electronic communication, and surveilling antiwar protesters have awakened traditional civil liberties concerns.
So the beginning of the twentieth century saw conflicting trends in the realm of free expression. On the one hand, the reappearance of patterns of state control and interference looks back to earlier generations of struggle and reenergizes older civil liberties organizations. On the other, technological change and neoliberalization promise a new era of channel abundance that makes older forms of control, including journalistic professionalization, seem superfluous.