Freedom of Speech Resources

Alexander Meiklejohn was the first political theorist to offer a sustained defense of freedom of speech on the basis of democratic theory. The function of liberty of speech and of the press, in his view, is to enable the most inclusive and therefore best public deliberation. It thus refuses to identify the right to speak freely with property rights, which as Meiklejohn observes can have relatively severe restrictions within the overarching limitation of due process. Meiklejohn thus elevates freedom of speech above almost all other rights as the foundation or most essential condition of the democratic process. While Meiklejohn is more strictly libertarian than other democratic theorists when it comes to public speech, he distinguishes such speech from private speech and mere "expression," which he believe ought to be covered by due process limitations alone.

In this influential book, legal scholar Cass Sunstein defends a view of freedom of expression based on the principle of "government by discussion." Like Meiklejohn, Sunstein sees the purpose of the freedom of speech and press clauses of the First Amendment not as protecting individual liberty, but as making possible deliberative democracy. Unlike Meiklejohn, however, Sunstein's view of the requirements of democracy calls for a radical redrawing of the boundaries between protected and unprotected speech. Where Meiklejohn advocated a more libertarian view of First Amendment protections, Sunstein thought that there should be more regulation of speech in order to correct the distortions of the public voice that certain kinds of speech can produce.

John Stuart Mill was an English philosopher best known for his book On Liberty, which advanced a libertarian teaching about freedom. A large part of On Liberty is devoted to freedom of speech in particular, and this part has shaped to a great extent contemporary views of the First Amendment. Its argument goes beyond the classical liberal case for freedom of speech, which is based primarily on a view of the radically limited jurisdiction of government, and puts forward a positive case for individuals to respect the expression of opinions they find offensive. Mill is thus largely responsible for the more expansive view of the duty to respect freedom of speech, which resists suppression of speech not only by government, but also by society and within private institutions. On Liberty also advances what has become known as the "harm principle," according to which the only justification for curtailing anyone's liberty is that it prevents harm to others.

John Locke was an English political philosopher in the 17th century who is considered to be one of the most influential of the Enlightenment philosophers on the American founding and therefore on the character and design of the U.S. Constitution. His political teaching is relevant to the freedom of speech and press in two ways. First, he articulated a powerful argument for freedom of conscience in his Letter Concerning Toleration, which, although it is intended primarily as an argument for religious toleration, can be understood to support the toleration of heterodox opinion more generally. Second, he developed a general theory of limited government based on property rights that was taken by many of his students to imply the right to free speech.

Subtitled A Speech of Mr. John Milton for the Liberty of Unlicenc’d Printing, to the Parliament of England, John Milton’s Areopagitica stands as the first explicit defense of freedom of speech or press. Milton wrote this speech in response to the Licensing Act of 1643 and advocates for what would eventually become the common law principle of freedom from “prior restraint.” In other words, the state should retain the right to regulate “scandalous” writings, but this regulation should not be permitted prior to publication. Though Milton's arguments point toward a stronger case for toleration of heterodoxy, he stops short of making such a case and admits relatively extreme qualifications to his understanding of the freedom of the press. In particular, Milton insists that toleration should not extend so far as to include Catholics.