Freedom of Speech

by Harvey O'Higgins

Freedom of Speech

By HARVEY O'HIGGINS

IT is probably the poet who has done it. He celebrates the land "where, girt with friends or foes, a man may speak the thing he will." He does not add, "and suffer the consequences." He appears to overlook, for example, the libel laws. He writes as if freedom of speech included freedom from the consequences of speech. And many among us, in the last few troubled months, seem to have assumed the same theory of freedom.

There never has been a country in which speech enjoyed any such immunity. In the poet's England, neither in peace nor war, could a man speak the thing he would without being held responsible for his utterance. There, as here, if he uttered a libel, he could be prosecuted for it and prevented from repeating it. He could be punished for giving voice publicly to blasphemies or obscenities, for speaking in contempt of court, for inciting to a breach of the peace, and so forth. He enjoyed freedom of speech only as he enjoyed freedom of action. If he offended against the laws either by speech or action, he could be punished, and he could be prevented from repeating the offense. His right to freedom of speech was a right merely to say the thing he would say without first submitting it to the censorship of authority.

The same restrictions have always been put upon the freedom of the press in the most liberal democracies, and the man who printed a libel could always be punished for publishing it and prevented by a court injunction from repeating it. His freedom ran only as far as this: he could not, by court order or any other process of law, be prevented from publishing it the first time. He could be prevented from circulating it after it had been published and adjudged a libel. He could be prevented from sending it through the mails if the post-office authorities considered it a misuse of the mails to send it. But he had the right to print it once and take the consequences; to print it again, if he wished to be punished again; and finally to spend his life in jail if he pleased rather than give up his right to reprint it. In the freest of countries, in the most peaceful of times, freedom of speech and freedom of the press were never more than the limited freedom to say what you pleased and print what you pleased and take the consequences.

One of the consequences in war-time is likely to be a charge of treason. What you say or what you print may be construed as "giving aid and comfort to the enemy." You may do it innocently, you may do it purposely. To punish you, after you have given the enemy aid, does not further the purposes of war, and most of the European countries have established censorships of the press, the mail, and the telegraph to prevent the enemy from getting aid or comfort either from the innocent or the guilty. Here, in this country, we have been unwilling to give our Government the right to censor and suppress our utterances in official secrecy. We have preserved our peace-time right to say what we please and take the consequences. We have enlarged the official power to deny the use of the mails to publications that give aid and comfort to the enemy; but that power cannot move until the offense has been openly committed, so that public opinion may act as a restraint upon arbitrary authority. We have permitted a sort of censorship of enemy utterances in our alien press. Our loyal native press has submitted to a modified censorship voluntarily. But, on the whole, we have preserved the principles of freedom of speech and freedom of the press, with only a slight increase of the restrictions put upon such freedom in our freest days before the war.

And the cry that is now raised for freedom of speech and freedom of the press is raised by persons who have enjoyed those freedoms and been judged guilty of abusing them. What they demand, apparently, is the right to continue to circulate utterances that have been held inimical to the interests of the community. They demand not only freedom of speech. but freedom from the consequences of speech. They cry not for liberty, but for immunity from the responsibilities of liberty. They expect to be not only free, but privileged, exempt, irresponsible, and protected by some holy right of sanctuary in a temple of established freedom which they shall be free to defile.