FREEDOM OF THE MIND
I
I have sought, so far, to show that, however important be the
political mechanisms on which liberty depends, they will not work of
themselves. They depend for their creativeness upon the presence in
any given society of a determination to make them work. The knowledge
that an invasion of liberty will always meet with resistance from men
determined upon its repulsion, this, in the last analysis, is the only
true safeguard that we have. It means, I have admitted, that a certain
penumbra of contingent anarchy always confronts the state; but I have
argued that this is entirely desirable since the secret of liberty is
always, in the end, the courage to resist.
The most important aspect of this atmosphere is undoubtedly freedom of
the mind. The citizen seeks for happiness, and the state, for him, is
an institution which exists to make his happiness possible. He judges
it, I have urged, by its capacity to respond to the needs he infers
from the experience he encounters. That experience, I have insisted, is
private to himself. Its predominant quality is its uniqueness. Either
it is his own, or it is nothing. The substitution for it of someone
else’s experience, however much wider or wiser than his, is, where it
is based upon constraint, a denial of freedom. What the citizen, quite
rightly, expects from the state is to have his experience counted
in the making of policy, and to have it counted as he, and he only,
expresses its import.
Obviously enough, if his experience is to count, a man must be able to
state it freely. The right to speak it, to print it, to seek in concert
with others its translation into the event, is fundamental to liberty.
If he is driven, in this realm, to silence and inactivity, he becomes
a dumb and inarticulate creature, whose personality is neglected in
the making of policy. Without freedom of the mind and of association
a man has no means of self-protection in our social order. He may
speak wrongly or foolishly; he may associate with others for purposes
that are abhorrent to the majority of men. Yet a denial of his right
to do these things is a denial of his happiness. Thereby, he becomes
an instrument of other peoples ends, not himself an end. That is the
essential condition of the perversion of power. Once we inhibit freedom
of speech, we inhibit criticism of social institutions. The only
opinions of which account is then taken are the opinions which coincide
with the will of those in authority. Silence is taken for consent;
and the decisions that are registered as law reflect, not the total
needs of the society, but the powerful needs which have been able to
make themselves felt at the source of power. Historically, the road to
tyranny has always lain through a denial of freedom in this realm.
I desire here to maintain a twofold thesis. I shall seek to show,
first, that liberty of thought and association--the two things are
inextricably intertwined--is good in itself, and second, that
its denial is always a means to the preservation of some special
and, usually, sinister interest which cannot maintain itself in an
atmosphere of freedom. I shall then discuss what restrictions, if any,
must be placed upon this right, and the conditions it demands for
its maximum realization. I shall, in particular, maintain that all
restrictions upon freedom of expression upon the ground that they are
seditious or blasphemous are contrary to the well-being of society.
The case for the view that freedom of thought and speech is a good
in itself is fairly easy to make. If it is the business of those who
exercise authority in the state to satisfy the wants of those over whom
they rule, it is plain that they should be informed of those wants;
and, obviously, they cannot be truly informed about them unless the
mass of men is free to report their experience. No state, for instance,
could rightly legislate about the hours of labour if only business men
were free to offer their opinion upon industrial conditions. We could
not develop an adequate law of divorce if only those happily married
were entitled to express an opinion upon its terms. Law must take
account of the totality of experience and this can only be known to it
as that experience is unfettered in its opportunity of expression.
Most people are prepared to agree with this view when it is made
as a general statement; most people, also, recoil from it when its
implications are made fully known. For it implies not only the right
to beatify the present social order, but the right, also, to condemn
it with vigour and completeness. A man may say that England or America
will never be genuinely democratic unless equality of income is
established there; that equality of income may never be established
except by force; that, accordingly, the way to a genuine democracy lies
through a bloody revolution. Or he may argue that eternal truth is the
sole possession of the Roman Catholic Church; that men can only be
persuaded to understand this by the methods of the Inquisition; that,
therefore, the re-establishment of the Inquisition is in the highest
interest of society. To most of us, these views will seem utterly
abhorrent. Yet they represent the generalizations of an experience that
some one has felt. They point to needs which are seeking satisfaction,
and the society gains nothing by prohibiting their expression.
For no one really ceases to be a revolutionary Communist or a
passionate Roman Catholic by being forbidden to be either of these. His
conviction that society is rotten at its base is only the more ardently
held, his search for alternative ways of expressing his conviction
becomes only the more feverish as a result of suppression. Terror does
not alter opinion. On the one hand it reinforces it, on the other
it makes the substance of opinion a matter of interest to many who
would, otherwise, have had no interest whatever in it. When the United
States Customs Department suppressed _Candide_ on the ground that it
was an obscene book, they merely stimulated the perverse curiosity
of thousands to whom _Candide_ would have remained less than a name.
When the British Government prosecuted the Communists for sedition
in 1925 the daily reports of the trial, the editorial discussion of
its result, made the principles of Communism known to innumerable
readers who would never, under other circumstances, have troubled to
acquaint themselves with its nature. No state can suppress the human
impulse of curiosity, and there is always a special delight, a kind
of psychological scarcity-value, in knowledge of the forbidden. No
technique of suppression has so far been discovered which does not have
the effect of giving wider currency to the thing suppressed than can be
attained in any other fashion.
But this is only the beginning of the case for freedom of speech.
The heresies we may suppress today are the orthodoxies of tomorrow.
New truth begins always in a minority of one; it must be someone’s
perception before it becomes a general perception. The world gains
nothing from a refusal to entertain the possibility that a new idea
may be true. Nor can we pick and choose among our suppressions with
any prospect of success. It would, indeed, be hardly beyond the mark
to affirm that a list of the opinions condemned as wrong or dangerous
would be a list of the commonplaces of our time. Most people can see
that Nero and Diocletian accomplished nothing by their persecution of
Christianity. But every argument against their attitude is an argument
also against a similar attitude in other persons. Upon what grounds
can we infer prospective gain from persecution of opinion? If the
view held is untrue, experience shows that conviction of its untruth
is invariably a matter of time; it does not come because authority
announces that it is untrue. If the view is true in part only, the
separation of truth and falsehood is accomplished most successfully in
a free intellectual competition, a process of dissociation by rational
criticism, in which those who hold the false opinion are driven to
defend their position on rational grounds. If, again, the view held is
wholly true, nothing whatever is gained by preventing its expression.
Whether it relates to property, or marriage, to religion or the form
of the state, by being true it demands a corresponding change in
individual outlook and social organization. For untrue opinions do not
permanently work. They impede discovery and they diminish happiness.
They enable, of course, those to whom they are profitable, to benefit
by their maintenance, but it is at the cost of society as a whole.
There is the further question, moreover, of the persons to whom the
task of selecting what should be suppressed to be confided. What
qualifications are they to possess for their task? What tests are they
to apply from which the desirability of suppression is to be inferred?
A mere zeal for the well-being of society is an utterly inadequate
qualification; for most persons who have played the part of censor have
possessed this and have yet been utterly unfit for their task. The
self-appointed person, Mr Comstock, for instance, merely identifies his
private view of moral right with the ultimate principles of ethics;
and only the intellectually blind would ask that the citizen be fitted
to his vicious bed of Procrustes. The official censor, a man like the
famous Pobedonostev, normally assumes that any thorough criticism of
the existing social order is dangerous and destructive; and, thereby,
he transforms what might be creative demand into secret attack which
is ten times more dangerous in its attack. If you take almost any
of those who are appointed to work of this kind, you discover that
association with it seems necessarily to unfit them for their task. For
it turns them into men who see undesirability in work which the average
man reads without even a suspicion that it is not the embodiment of
experience with which he ought to be acquainted. Anyone who looks
through the list of prohibited publications enforced by the Dominion of
Canada will, I think, get a sense that the office of censorship is the
avenue to folly.[27] No one with whom I am acquainted seems wise enough
or good enough to control the intellectual nutrition of the human mind.
What tests, further, are they to apply? Broadly speaking, we suppress
publications on the ground that they are obscene or dangerous. But no
one has ever arrived at a working definition of obscenity, even for
legal purposes. Take, for instance, two books suppressed by the English
magistrates for obscenity in 1929. One, Miss Radclyffe Hall’s _Well of
Loneliness_, seemed to men like Mr Arnold Bennett and Mr Bernard Shaw a
work which treated of a theme of high importance to society in a sober
and high-minded way. They saw no reason to suppose that the treatment
of its difficult subject--sexual perversion--could be regarded by any
normal person as offensive. The magistrate, Sir Chartres Biron, took a
different view. I, certainly, am not prepared, on _a priori_ grounds,
to say that a lawyer, however well-trained in the law, has a better
sense of what is likely to produce moral depravity than Mr Bennett or
Mr Shaw; and a reading of Miss Hall’s dull and sincere pamphlet only
reinforces that impression. Another book was distributed privately and
secretly--Mr D. H. Lawrence’s _Lady Chatterly’s Lover_--in a limited
and expensive special edition. I gather that its public sale would
have been definitely prohibited. Yet I observe that some of the most
eminent American critics have praised it as the finest example of a
novel seeking the truth about the sexual relations of men and women
that an Englishman has published in the twentieth century. That may
be--I am not competent to say--excessive praise. My point is that in a
choice, say, between the average police magistrate and Mr Robert Morss
Lovett, I am not prepared to accept the former’s opinion of what I may
be safely left to read.
Let me remind you, moreover, of what cannot too often be pointed out,
that the rigorous application of the legal tests of obscenity would
prohibit the circulation of a very considerable part of the great
literature of the world. The Bible, Shakespeare, Rabelais, Plato,
Horace, Catullus, to take names at random, would all come under the
ban. It is worth while pointing out that those most concerned with the
suppression of “obscene” books are religious people. On their tests
of obscenity the Bible certainly could not hope to escape; yet they
believe, in general, that the Bible is the inspired word of God, a
position which, I venture to suggest, should at the least give them
pause. I do not know, indeed, how we are to create a healthy social
attitude to the problems of sex, if all that deals with it from a
new point of view, and with a frankness that admits the experimental
nature of our contemporary solutions, is to be dismissed as “obscene”.
Questions like those of birth control, extra-marital love, companionate
marriage, sexual perversion, cannot really be faced in a scientific
fashion by applying to them the standards of a nomadic Eastern people
which drew up its rules more than two thousand years ago. Virtuous
people who shrink from frank discussion in this realm seem to me
responsible for probably more gratuitous suffering than any other group
of human beings. The thing they call “innocence” I believe to be quite
wanton ignorance, and, by its abridgment of freedom, it imprisons human
personality in a fashion that is quite unpardonable.
The same seems to me to be the case in the realm that is called
blasphemy. I have no sort of sympathy with that attitude of mind which
finds satisfaction in wanton insult to the religious convictions of
others. But I am not prepared for its suppression. For I note that,
historically, there are no limits to the ideas which religious persons
will denounce as blasphemous; and, especially, that in an age of
comparative religious indifference, the hand of persecution almost
invariably chooses to fall only on humble men.[28] It attacks Mr G.
W. Foote, but it leaves Lord Morley free to do infinitely more damage
than any for which Mr Foote can ever have been responsible. I cannot,
moreover, forget that what is blasphemy in Tennessee is common sense
in New York, that the works of Wollaston and Toland and Chubb, which
seemed entirely blasphemous to their generation, seem commonplace
to ourselves. Every religious body really means by blasphemy an
attack upon its fundamental principles. Such attacks are, of course,
necessarily circulated to bring them into contempt. We who read Paine’s
_Age of Reason_ with admiration for its cogency of argument, its
trenchant style, its fearless appetite for truth, can hardly avoid a
sense of dismay when we remember the days when it was secretly passed
from hand to hand as an outrageous production, the possession of which
was itself an indication of social indecency.
And here let me remind you of certain facts on the other side. We
denominate as blasphemous works calculated to bring the principles of
Christianity into hatred, ridicule, or contempt. As I have said, I
entirely dislike the type of work which finds pleasure in offensiveness
to Christians. But if we are to suppress works, and punish their
authors, because they cause grief to certain of our fellow-citizens,
exactly how far are we to carry the principle? A very large part of
propagandist religious literature is highly offensive to sincere
and serious-minded persons who are unable, in their conscience, to
subscribe to any particular creed. When you remember the descriptions
applied by Mr William Sunday to those who do not accept Christianity,
you cannot, I think, avoid a sense that there is a religious blasphemy
for which, at least from the angle of good manners, nothing whatever
can be said. Mr Sunday is only one of the worse offenders in a whole
tribe of preachers and writers to whom belief, however sincere, that
is alien from their own, is normally and naturally described in the
language it is a euphemism to call Billingsgate; and charges of
immorality are brought against unbelievers by them for which not an
atom of proof exists. Are we to suppress all such publications also?
And if we are to continue this campaign of prohibition to its appointed
and logical end, shall we have time for any other social adventure?
Nor is this all. In the world of education we are continually
presented with the problem of text-books which are offensive to a
particular denomination. We are asked, for instance, to prohibit
their use in schools. I sit as an appointed member of the Education
Committee of the London County Council. I have been presented there
with a requisitory, drawn up by a Catholic body, against the use of
certain books on the ground that they contain untrue statements about
questions like the Reformation, in which Catholics are particularly
interested. But I have not observed in the same Catholic body a
desire only to use those text-books in their own denominational
schools which Protestants are prepared to accept as a true picture
of the Reformation. Nor is this problem of school text-books merely
religious in character. Americans of our own generation have seen
passionate controversy over the view of the War of Independence, of the
Constitution, of the motives and responsibility in the war of 1914,
which are to be presented not merely to school children, but also to
university students; there is a heresy-hunt in the fields of politics
and economics, a desire to have only “true” opinions taught to the
immature mind. But “true” opinions, on examination, usually turn out to
be the opinions which suit the proponents of some particular cause.
In London we think that a “true” theory of value is best obtained from
the works of Professor Cannan; in Cambridge they pin their faith to
Marshall and Pigou; in the Labour Colleges ultimate wisdom is embodied
in the writings of Marx, and Cannan, Marshall and Pigou are all
dismissed as the pathetic servants of bourgeois capitalism. Is anything
gained for anyone by insisting that truth resides on one side only of
a particular Pyrenees? Is it not wisdom to begin by an admission of
its many-sidedness? And does not that admission involve an unlimited
freedom of expression in the interpretation of facts? For facts, as
William James said, are not born free and equal. They have to be
interpreted in the light of our experience; and to suppress someone’s
experience is to suppress someone’s personality, to impose upon him
our view of what his life implies to the forcible exclusion of that in
which alone he can find meaning. I see neither wisdom nor virtue in
action of this kind.
So far, I have restricted my discussion to the non-political field,
and before I enter this area, I want, for a moment, both to summarize
the position we have reached and to admit the one limitation on
freedom of expression I am prepared to concede. I have denied that
prohibitions arising from blasphemy or obscenity, or historical or
social unfairness, have any justification. They seem to me unworkable.
They are bad because they prevent necessary social ventilation. They
are bad because they exclude the general public from access to facts
and ideas which are often of vital importance. They are bad because
no one is wise or virtuous enough to stand in judgment upon what
another man is to think or say or write. They are bad because they are
incapable of commonsense application; there is never any possibility
of a wise discrimination in their application. They give excessive
protection to old traditions; they make excessively difficult the
entrance of new. They confer power in a realm where qualifications
for the exercise of power, and tests for its application, are, almost
necessarily, non-existent. For the decision of every question of this
kind is a matter of opinion in which there is no prospect of certainty.
Suppression here means not the prohibition of the untrue or the unjust
or the immoral, but of opinions unpleasing to those who exercise the
censorship. Historically, no evidence exists to suggest that it has
ever been exercised for other ends.
I do not see any rational alternative to this view. But here I should
emphasize my own belief that, broadly speaking, such freedom of
expression as I have discussed means freedom to express one’s ideas
on general subjects, on themes of public importance, rather than on
the character of particular persons. I have not, I think, a right to
suggest that Jones beats his wife, or that Brown continually cheats his
employer, unless I can prove, first that the suggestions are true, and,
second, that they have a definite public import. I have not a right to
create scandal because I find pleasure or profit in speaking ill of
my neighbour. But if Brown, for instance, is a candidate for public
office, my view that he cheats his employer is directly relevant to
the question of his fitness to be elected; and if I can prove that my
view is true, it is in the public interest that I should make it known.
I cannot, that is to say, regard my freedom of expression as unlimited.
I ought not to be permitted to inflict unnecessary pain on any person
unless there is relevant social welfare in that infliction.
On the other hand, I would make one remark here that seems to me of
increasing importance in a society like our own. The public interest in
the habits of individuals is real, and we must be careful to give it
its proper protection. It is, I think, reasonable to doubt whether the
Anglo-American law of libel, in its present state, does not push too
far the right of the individual citizen to be protected from comment.
Outrageous damages, which bear no measurable relation to anything, are
often claimed and not seldom awarded. Where a political flavour enters
into a case, it is difficult, and sometimes impossible, to persuade a
jury to consider the issue on its merits. I have myself sat on a jury
in a political libel case of which I can only say that I was almost
persuaded to doubt the validity of the jury-system altogether by the
habits there displayed. I am tempted to suggest that, criminal libel
apart, it would be worth while considering the abolition of damages in
all political or quasi-political cases, and the concentration, as an
alternative, upon proper publicity for the form of apology where the
libel is held to be proved. We have, for instance, got into the bad
habit in England of thinking that the social position of the plaintiff
is a measure of the damages he should receive; and it is well known
that there are places where, for instance, a socialist could hardly
hope even for a verdict from any average jury. The case for careful
inquiry, at any rate, seems to me to be made out. As the law at present
stands and works, I do not think I could even say of a candidate for
the House of Commons that he was not likely to be more than a permanent
back-bencher without having to pay heavily for my opinion.
II
But I turn from these relatively simple matters to the political aspect
of freedom of expression which is, of course, the pith of the whole
problem. How far is a man entitled to go in an attack upon the social
order? What opinions, if any, are to be prohibited on the ground that
they incite to subversive conduct? Is there a distinction between the
printed word and the spoken word? Is there a distinction between speech
in one place, and speech in another? Is there a difference between
normal times and a time of crisis like, let us say, a war or a general
strike? At what point, if any, do words become acts of which authority
must take account to fulfil its primary duty of maintaining the peace?
It will, I think, be universally agreed that all criticism of social
institutions is a matter of degree. Let us take the problem first as
we meet it in normal times and let us view it from the angle of the
English law of sedition.[29] Here it may be said at once that were
that law enforced in its literal terms, political controversy in
England would be impossible. For the declared purpose of the law is to
prevent the established institutions of the state from being brought
into hatred or contempt, and every leader of the opposition is seeking
to do precisely that thing when he makes a political speech. Anyone
who reads, for instance, the utterances of Lord Carson at the time of
the Home Rule fight in 1914, or of Mr Ramsay MacDonald in the General
Election of 1929, cannot avoid the conclusion that, taken literally,
they were seditious. Yet all of us agree that it is not the purpose of
the law to prevent such speeches being made. When, therefore, if ever,
is that law to be brought into operation?
We must, I think, begin by a distinction between the written and the
spoken word. If an English Communist leader writes a book or pamphlet,
whatever its substance, and to whomever it is addressed, I do not think
the law ought to be used against him. For it is the history of these
matters that if governments once begin to prohibit men from seeking
to prove in writing that violent revolution is desirable, they will,
sooner or later, prohibit them from saying that the social order they
represent is not divine. In Italy, at the moment, for example, papers
are actually suppressed not for anything positive that they say, but
because there is absent from their pages frequent and emphatic eulogy
of the present régime; there have even been calls for suppression
because particular papers, while saying no word against Mussolini,
have been too insistently eulogistic of the Papacy. I yield to no one
in my dissent from, say, Lenin’s analysis of the nature of the modern
state. But I think it urgent that his criticism should be available
to society. For it represents the impress made upon him by experience
of political life, and a government which remains unaware of that
criticism has lost its chance of seeking to satisfy the critic. If it
begins by assuming that the exposition of Revolutionary Communism is
undesirable, it will end, as the record shows, that language classes
to teach English to Russians are a form of Communist propaganda.
There is never any such certitude in matters of social constitution
as to justify us in saying that any exposition of principles must be
suppressed. No authority has ever a capacity for wise discrimination in
these matters; and, even if it had, I do not see why it is justified in
the exercise of discrimination.
For suppression, in the first place, never convinces. What it does is
to drive a small body of men to desperation and to reduce the masses to
complete apathy in political matters. Most men who are prohibited from
thinking as their experience teaches them soon cease to think at all.
Men who cease to think cease also in any genuine sense to be citizens.
They become the mere inert recipients of orders which they obey
without scrutiny of any kind. And their inertia surrounds the acts of
authority with that false glamour of confidence which mistakes silence
for consent. The government which is not criticized at its base never
truly knows the sentiments to which its activity gives rise among its
subjects. It ultimately must fail to satisfy them because it does not
know what desires it has to satisfy. Political thought, after all,
however unwise or mistaken, is never born in a vacuum. Lenin’s view of
capitalist society is just as relevant to its habits as the view of the
Duke of Northumberland or of Judge Gary; each is born of contact with
it, and each, as it is expressed, has lessons to teach from which, as
these are scrutinized, a wise policy can be born.
Here, I think, it is relevant to say a word upon one special aspect of
freedom of expression for printed matter. I have argued that no limit
of any kind is to be placed upon it, at any rate in normal times. The
book, the pamphlet, the newspaper, ought to circulate with unimpeded
freedom in whatever direction they can move. Many people who sympathize
with this view will, however, except from this freedom printed
material which is addressed to the armed forces of the state; and most
governments, of course, have special legislation, with specially severe
penalties, against any attempt at interference with their loyalty. I
cannot myself see that this exception is justified. The armed forces
of the state consist of citizens. The government has quite exceptional
opportunities to retain their allegiance. If a printed document is able
to sow disaffection amongst them, there must be something very wrong
with the government. And, in fact, whenever agitation has produced
military or naval disloyalty that has been the outcome not of affection
for the principles upon which the agitators lay emphasis, but of
grievances which have made either soldiers or sailors responsive to a
plea for their disloyalty. That was the case with the Spithead mutinies
of 1797; with the French troops in 1789; with the Russian troops in
1917. If the army or the navy is prepared to turn upon the government,
the likelihood is great that the government is unfit to retain power.
For anyone who can disturb the allegiance of a mind as trained to
obedience as that of the soldier or the sailor has, I believe, an _a
priori_ case for insisting that his particular philosophy corresponds
to an urgent human need.
It is said that ideas are explosive and dangerous. To allow them
unfettered freedom is, in fact, to invite disorder. But, to this
position, there are at least two final answers. It is impossible to
draw a line round dangerous ideas, and any attempt at their definition
involves monstrous folly. If views, moreover, which imply disorder
are able to disturb the foundations of the state, there is something
supremely wrong with the governance of that state. For disorder is not
a habit of mankind. We cling so eagerly to our accustomed ways that,
as even Burke insisted, popular violence is always the outcome of a
deep popular sense of wrong. The common man can only be persuaded to
outbreak, granted his general habits, when the government of the taste
has lost its hold upon his affections; and that loss is always the
reflection of a profound moral cause. We may, indeed, go further and
argue that the best index to the quality of a state is the degree in
which it is able to permit free criticism of itself. For that implies
an alertness to public opinion, a desire to remedy grievance, which
enables the state to gain ground in the allegiance of its citizens.
Almost always freedom of speech results in a mitigation which renders
disorder unnecessary; almost always, also, prohibition of that freedom
merely makes the agitation more dangerous because it drives it
underground. Rousseau was infinitely more dangerous as a persecuted
wanderer, because infinitely more interesting and, therefore,
infinitely more persuasive, than he would have been when unfettered in
Paris. Lenin did far more harm to Russia as an exile in Switzerland
than he could ever have accomplished as an opposition leader in the
Duma. The right freely to publish the written word is, in fact, the
supreme Katharsis of discontent. Governments that are wise can always
learn more from the criticism of their opponents than they can hope
to discover in the eulogies of their friends. When they stifle that
criticism, they prepare the way for their own destruction.
There is, I think, an undeniable difference between freedom of written
and freedom of spoken, expression. In the one case, a man attempts
conviction by individual persuasion; he seeks, by argument which he
believes to be rational, to move the mind of those who read what he
has written. To speak at a meeting raises different problems. No one
with experience of a great crowd under the sway of a skilled orator
can doubt his power deliberately to create disorder if he so desires.
A speaker at Trafalgar Square, for instance, who urged a vast meeting
of angry unemployed to march on Downing Street, could do so with a fair
assurance that they would obey his behest. I do not think a government
can be left to the not always tender mercies of an orator with a
grievance to exploit. The state, clearly, has the right to protection
against the kind of public utterance which is bound to result in
disorder.
But no government is entitled itself to assume that disorder is
imminent: the proof must be offered to an independent authority. And
the proof so offered must be evidence that the utterance to which it
takes exception was, at the time and in the circumstances in which it
was made, definitely calculated to result in a breach of the peace. Its
prohibitions must not be preventive prohibitions. It must not prohibit
a meeting before it is held on the ground that the speaker is likely to
preach sedition there. It must not seek conviction for sedition where
the utterance might, under other circumstances, have had the tendency
to result in a breach of the peace. To use my earlier illustration, I
think a government would be justified in prosecution of the Trafalgar
Square orator; but I do not think it would be entitled to prosecute the
same speaker if he made the same speech on Calton Hill in Edinburgh.
For we know that when men in Edinburgh are incited to march on London,
they have a habit of turning back at Derby. I conclude, therefore, that
the test adopted by Mr Justice Holmes, in his deservedly famous dissent
in _Abrams_ v. U.S.,[30] is the maximum prohibition a government can
be permitted. If it is in fact demonstrable that the speech made had
a direct tendency to incite immediate disorder, the punishment of the
accused is justified. I think such cases should always be tried before
a jury. Experience suggests that a random sample of popular opinion
is more likely to do justice in this type of case than is a judge. I
have myself been present at such trials before a magistrate where the
whole case for the prosecution quite obviously broke down and where,
nevertheless, a conviction was secured. I do not for a moment suggest
that we can be confident that a jury will act wisely; but my sense of
our experience is that there is less chance of its acting unwisely than
persons who occupy an official position of any kind. With the best will
in the world, their tendency is to be unduly responsive to executive
opinion.
You will see that my anxiety is to maximize the difficulties of any
government which desires to initiate prosecutions in this realm. My
reason for this view is the quite simple one that I do not trust the
executive power to act wisely in the presence of any threat, nor
assumed threat, to public order. Anyone who studies the treason trials
of 1794, or, even more striking, the cases under the Espionage Act in
America during 1917-20, will be convinced of the unwisdom of allowing
the executive an undue latitude. Every state contains innumerable and
stupid men who see in unconventional thought the imminent destruction
of social peace. They become Ministers; and they are quite capable of
thinking that a society of Tolstoyan anarchists is about to attempt
a new gunpowder plot. If you think of men like Lord Eldon, like Sir
William Joynson-Hicks, like Attorney-General Palmer, you will realize
how natural it is for them to believe that the proper place for Thoreau
or Tolstoy, for William Morris or Mr Bernard Shaw, is a prison. I am
unable to take that view; and I am therefore anxious that they should
not be able to make it prevail without finding that there are barriers
in their path.
III
Views such as I have put forward are often regarded with sympathy
when their validity is limited to normal times. In a crisis, it is
argued, different considerations prevail. When the safety of a state
is threatened it is bound to take, and is justified in taking, all
action to end the crisis. To suggest that it should be then bound by
principles which weaken its effective striking power, is, it is said,
to ask it to fight with one hand tied behind its back. The first
objective of any society must be organized security; it is only when
this has been obtained, that freedom of speech is within the pale of
discussion.
I am unable to share this view. We have really to examine two quite
different positions. There is, first, the question of the principles
to be applied in a period of internal violence; there is, next, the
quite special question of limitation upon utterance in a period of
war. I agree at once that it is entirely academic to demand freedom of
speech in a time of civil war, for the simple reason that no one will
pay the slightest attention to the demand; violence and freedom are,
_a priori_, contradictory terms. But I would point out two things. In
general, revolutions fail because those who make them deny freedom to
their opponents. Losing criticism, they do not know the limits within
which they can safely operate; they lose their power because they are
not told when they are abusing it. I can think of no revolutionary
period in history when a government has gained by stifling the opinion
of men who did not see eye to eye with it; and I suggest that the
revolutionary insistence that persuasion is futile finds little
creative evidence in its support.
But when once the question has been settled of who is to possess power
other questions of urgent delicacy arise in which, as I think, the
principles I have laid down possess an irresistible force. There is
the problem of how the rebel and the disaffected are to be treated; of
whether the resumption of order is to be followed by free discussion;
of the power to be exercised by the military authority over ordinary
citizens not engaged in armed hostility to the régime. Here I can
only express the view that the resumption of order ought always to
be followed forthwith by the normal principles of judicial control;
and that the military authorities ought not, save where it is quite
impossible for the civil courts to exercise their jurisdiction, to have
any powers over ordinary citizens.
These are rigorous views; and, perhaps, I may devote a little time
to their exposition. I know of no case where the state has exercised
extraordinary power outside the normal process of law, in which that
authority has not been grossly abused. It was abused in the Civil
War even under a mind so humane and generous as that of Lincoln; it
was emphatically and dangerously abused in the Amritsar rebellion
of 1919. Let me illustrate, from this latter example, some of the
things that were done. Two men were arrested in Amritsar prior to the
declaration of martial law and deported to an extreme and undisturbed
part of the province; on the declaration of martial law, they were
brought back to Lahore, which was in the martial law area, and tried
and sentenced by a martial law tribunal. A number of pleaders were
arrested in Gudaspur, where there was no disturbance, taken under
revolting conditions to Lahore, and confined there in the common jail
for a period lasting up to a month. They were then released, without
any charges being preferred against them; on the evidence, indeed, it
is difficult to know with what offence they could have been charged.
In the trial, again, of one Harkishan Lal, and others, for treason
and waging war against the King-Emperor, the accused were not allowed
to have a lawyer of their own choosing; a full record of the case
was not taken, and the private notes of counsel for the defence had
to be surrendered by him to the Court at the end of each day. Under
such conditions it is difficult to see how any adequate defence was
possible. A punitive detachment, again, under a Colonel Jacob, tried by
drumhead court-martial and flogged, a man who refused, it appears with
some truculence, to say who had destroyed some telegraph wires; later
it appeared that the man, as he had asserted, had in fact no knowledge
of who had destroyed them. In Lahore--to take a final instance--the
military officer in command prohibited more than a few persons to
congregate in the streets; a few persons did so congregate and they
were flogged. On investigation, after the flogging, it was found that
the group was a wedding-party whose purpose was not more dangerous than
that of any other persons engaged in a similar function.[31]
I do not, of course, suggest that there is anything especially cruel
or remarkable in these instances. Whether you study repression in
Ireland or Russia, Bavaria or Hungary or India, its history is
always the same. The fact always emerges that once the operation of
justice is transferred from the ordinary courts to some branch of the
executive, abuses always occur. The proper protection of the individual
is deliberately neglected in the belief that a reign of terror will
minimize disaffection. There is no evidence that it does. If it could,
there would have been no Russian Revolution; and there would be no
movement for Indian self-government today. The error inherent in any
invasion of individuality, such as a system of special courts implies,
is that it blinds the eyes of government to the facts not only by
suppressing illegitimate expression of opinion, but by persuading it
that most opinion which finds expression is illegitimate if it is
not in the nature of eulogy. Even Lincoln supported his generals in
completely indefensible attacks on civilian rights. Executive justice,
in fact, is simply an euphemism for the denial of justice; and the
restoration of order at this cost involves dangers of which the price
is costly indeed.
The problem of war is, in a sense, a special case of the problem of
disorder; but, in fact, it raises quite different considerations.
Let me first of all make the point that if you are a citizen in a
besieged town, you cannot expect a normal freedom of speech; to be
within the area of actual military operations means that you must not
hope to be regarded as an individual. You become, from the nature of
things, a unit of attack or defence whose personality is immaterial
and insignificant. The position here is extraordinary; and principles
have little or no relation to the problems that arise. The case,
as elsewhere, merely affords proof that liberty and violence are
antithetic terms.
But let us rather take the position of a citizen whose country is
involved in war as, say, England in 1914, or America in 1917. What are
his rights and duties then? I would begin by making the point that the
fact of belligerency does not suspend his citizenship; he owes as much,
perhaps more than ever, the contribution his instructed judgment can
make, to the public good. The scale of operations cannot, I think, make
any difference to that duty. It is as real, and as compelling, when
they are big, as in the war of 1914, as when, as in the Boer War, or
the Spanish-American War, they are relatively small. If I think the war
a just one, it is my duty to support it, and if I think it unjust there
is no alternative open to me except opposition to it. I believe, for
instance, that the opposition of Mr Ramsay MacDonald and Mr Snowden to
the war of 1914 was a fulfilment, on their part, of the highest civil
obligation. No citizen can assume that his duty in wartime is so to
abdicate the exercise of his judgment that the executive has a blank
cheque to act as it pleases. No government, therefore, is entitled to
penalize opinion at a time when it is more than ever urgent to perform
the task of citizenship. If a man sincerely thinks, like James Russell
Lowell, that war is merely an alias for murder, it is his duty to say
so even if his pronouncement is inconvenient to the government of the
day.
I cannot, indeed, believe that there is any case on the other side
worthy of serious consideration. In the war of 1914, it was said that
hostile opinion must be controlled because it hinders the successful
prosecution of the war. But behind the facade of prejudice contained
in the imputation of a term like hostility, there are several issues
each one of which requires analysis. For what does “hostile opinion”
mean? Does it imply hostility to the inception of a war, to the methods
of its prosecution, to the end at which it aims, to the terms on which
its conclusion is proposed? In the war of 1914, the critics were
divided into camps on each of these views. There were men, like Mr
MacDonald, who thought the war unjustified in its inception and bad
in its conclusion. There were others who criticized the manner, both
diplomatic and technical, of its prosecution. Was it, for instance,
hostility to the prosecution of the late war to criticize Lord
Jellicoe’s conduct at the Battle of Jutland, or Sir Ian Hamilton’s
handling of the operations at the Dardanelles? Was it, again, hostility
on the part of _The Times_ to attack the Asquith Government on the
ground, rightly or wrongly, that it showed a lack of energy in building
up a munitions supply? If a statesman not in office, Mr Roosevelt,
for example, thinks the diplomatic policy of the executive likely
to be attended by fatal results, must he confine himself to private
representations, lest public utterance hinder the national unity? If an
Englishman like Lord Lansdowne believed, as President Wilson believed
in 1916, that peace by negotiation is preferable to peace by victory in
the field, because of the human cost that victory entails, has he no
obligation to his fellow-citizens who are paying that cost with their
lives?
It is evident from our experience that to limit the expression of
opinion in wartime to opinion which does not hinder its prosecution
is, in fact, to give the executive an entirely free hand, whatever
its policy, and to assume that, while the armies are in the field,
an absolute moral moratorium is imperative. That is, surely, a quite
impossible position. No one who has watched at all carefully the
process of governance in time of war can doubt that criticism was never
more necessary. Its limitation is, in fact, an assurance that the unity
of outlook is a guarantee that mistakes will be made and wrong done.
For once the right to criticize is withdrawn, the executive commits
all the natural follies of dictatorship. It assumes a semi-divine
character for its acts. It deprives the people of information essential
to a proper judgment of its policy. It misrepresents the situation it
confronts by that art of propaganda which, as Mr Cornford has happily
said, enables it to deceive its friends without deceiving its enemies.
A people in wartime is always blind to the facts of its position and
anxious to believe only agreeable news; the government takes care to
provide it only with news that is pleasant. If no such news is at
hand it will be manufactured. Petty successes will be magnified into
resounding victories; defeats will be minimized, wherever possible. The
agony of the troops will be obscured by the clouds of censorship. A
wartime government is always obtuse to suggestion, angry when inquiry
is suggested, careless of truth. It can, in fact, only be moralized
to the degree to which it is subject to critical examination in every
aspect of its policy. And to penalize, therefore, the critic is not
only to poison the moral foundations of the state, but to make it
extremely difficult, when peace comes, for both government and the mass
of citizens to resume the habits of normal decency.
Freedom of speech, therefore, in wartime seems to me broadly to involve
the same rights as freedom of speech in peace. It involves them,
indeed, more fully because a period of national trial is one when,
above all, it is the duty of citizens to hear their witness. I do not,
of course, mean that a citizen in wartime should be free to communicate
secret military plans to the enemy; I do mean that if a man feels,
like Sir Henry Campbell-Bannerman, that British policy in South Africa
is “methods of barbarism,” it is his right, as well as his duty, to
say so. Obviously critical activity of this kind will be unpopular,
and a government which helps in the making of its unpopularity will
find the task of suppression easy. But it will pay a heavy price for
suppression. The winged words of criticism scatter, only too often,
the seeds of peace. Sir Henry Campbell-Bannerman’s attack on the
Balfour Government persuaded General Botha that trust in Great Britain
might not be misplaced; President Wilson’s speeches, especially his
Fourteen Points, were, impliedly, a criticism of Allied policy, and
that which, also, awakened liberal opinion in Germany to a sense of
its responsibilities. Wartime unity of outlook, in a word, is never
worth the cost of prohibitions. If the policy of a state which decides
upon war does not command the general assent of citizens, it has no
right to make war. If the number of those hostile is considerable, the
policy is, at the least, a dubious one. If the number is small, there
is no need to attempt suppression in the interest of success. The only
way, in fact, to attain the right is by free discussion; and a period
of crisis, when the perception of right is difficult, only makes the
emphasis upon freedom more fundamental.
Let me illustrate my view with reference to one or two of the decisive
factors in the Peace of Versailles. No one now believes the wartime lie
that Germany was solely responsible for the war; her responsibility may
be greater than that of some others, but it is agreed that the burden
of Russia is at least as heavy and that war, in any case, was rooted
in the nature of the European system. But, in the interest of national
unity, it was regarded as essential to represent Germany as the sole
conspirator against European peace. She was painted as a malefactor
whose sins were incapable of exaggeration. Her virtues were denied, her
achievements belittled, until what Mr Lippmann terms a “stereotype” of
her was built up for public use which made her appear to the average
man a criminal who could not be too severely punished. The statesmen
who constructed this stereotype knew that it was untrue; but they
hoped, doubtless, to escape its consequences, when the victory had been
won. They found that they could not do so. They had so successfully
repressed all effort at reasonable delineation, that the atmosphere
of hate was unconquerable. They had no alternative to a Carthaginian
peace because that seemed, to the masses they had deceived, the
only possible course for justice to take. They knew, as the famous
memorandum, for instance, of Mr. Lloyd George makes manifest,[32] that
a Carthaginian peace was disastrous for Europe; but it was too late to
destroy the legend they had created. Like those whom Dante describes in
the Inferno, they were punished by the realization of their announced
desires.
The world, in this context, has paid the price for the suppression of
truth; and another phase of the suppression should also be remembered.
It is usually agreed that some of the worst elements in the Peace
of Versailles were the result of the Secret Treaties by which the
Allies, exclusive of America, bound themselves to each other before
the entrance of America into the war. Nowhere among the associated
powers was the desire for a just peace more widespread than in America;
nowhere, also, was the discussion of war-aims more rigorously curtailed
as a hindrance to the full prosecution of the war. Had discussion of
the peace been full and effective in those critical years, the liberal
instincts of President Wilson might, when reinforced by the weight of
informed opinion, have compelled at least a considerable mitigation
of the secret treaties. They had been published in the American Press
after their issue by the Bolsheviks in 1917; full discussion would have
revealed their inadequacies, and enabled the President to counteract
what there was of evil in their substance. But the destruction of free
opinion acted as a smoke-screen to conceal them, and Mr Wilson did
not seriously give his mind to them until he reached Paris. It was
then too late to undo their consequences. Here, in fact, as elsewhere,
uncontrolled power acted like a miasma to blot out the only atmosphere
in which truth could be made manifest. No government was compelled to
do its duty, because the means were wanting to inform it of what its
duty was. The powers had forgotten, or had chosen to forget, that they
could not hope for a just peace save by freeing the minds of men and
women who cared for justice.
IV
So far, I have considered freedom in the political sphere as though it
concerned only a single individual placed over against society and the
state. I have sought to discuss what his freedom means in the complex
relationships in which he is involved. But, obviously, this is an undue
simplification of the problem. The individual, in fact, does not stand
alone; he joins hands with others of like mind to persuade, sometimes
to compel, society to the adoption of the view they share. It is
unnecessary for me to emphasize the vital part played by associations
in the modern community.[33] Granted that they have their dangers, they
are not only a vital expression of human personality, but an expression
as natural as the state itself. That a man must be free to combine with
his fellows for joint-action in some realm in which they have a kindred
interest is, I take it, of the essence of liberty. The point it is
important to examine is the degree of control, if any, that the state
is entitled to exercise over voluntary associations.
Let me say at once that I know no question more difficult in the whole
range of political science. I am quite certain that, from the angle
of individual freedom, the less interference the state attempts, the
better for everyone concerned; but, equally, I am clear that to some
interference the state is fully entitled. I should deny, for instance,
the right of any voluntary association to inflict physical punishment
or imprisonment upon its members; and I should argue that any state
was justified in immediate and drastic interference to this end. But
the real problems we encounter are not so simple as this. Joseph Smith
announces his reception of a message from Heaven ordaining the duty of
men to practise polygamy in a community where the law only recognizes
monogamy; what rights of interference has the state when a body of men
and women join him and begin to give effect to his teaching? What are
the rights of the state when a congress of trade unionists declares
a general strike? Are those rights different when the purpose of the
strike is industrial from what they are if it is political? How are
we to distinguish between the two? What are the rights of combination
among men employed in industries the nature of which makes the service
they perform fundamental to the community? What should be the attitude
of the state to a society of men engaged in propaganda for a revolution
by the use of physical force? Is there a difference between such a
society when it merely preaches the desirability of such a revolution
and when it acts to that end? Does action, in the latter case, mean
embarkation upon rebellion, for example, the purchase of machine-guns,
or does it extend, say, to the stirring-up of industrial strife in the
hope that a resort to political rebellion may be its outcome?
You will see that these are not merely academic questions; every one
of them has been in the forefront of political discussion this last
half-century, and all save the first have been vital themes of decision
in the years since the war. Take first the case of an association
which, like the Mormon Church, desires to practise modes of conduct
different from those pursued by the society as a whole. We have to
assume that the members of the association have joined it voluntarily,
and continue voluntarily in its membership. We have to assume, further,
that they do not desire to force their particular way of life upon
others; for some single realm of conduct, like the realm of marriage,
they desire that they shall be left free from interference by the
organized power of society. I cannot see that we are entitled to
interfere with them. We may think them unwise, foolish, muddle-headed,
immoral. We know perfectly well that we cannot hope, by the external
constraint of law, to abolish all conduct that comes within those
terms. I happen to think that it is a gross superstition to leave
money to the Roman Catholic Church that masses may be said for the
testator’s soul; but I should think it an unwarrantable interference
with the relations between that Church and its members if such bequests
were forbidden. I see no evidence to suggest that the practice of
polygamy is worse, in its nature, than a hundred other practices which
organized society either directly permits, or wisely leaves alone,
because it knows that rigorous control would be utterly futile. The
only way to deal with the ideals of the Mormon Church is to prove
their undesirability to their members. On the evidence of history,
persecution will not be acceptable as proof; and it is not improbable
that the only legal effect of prohibition has been to make furtive and
dishonest what was, at first, open and avowed. _Mutatis mutandis_,
this seems to me the case with all similar problems of association. If
a society of women, enthusiastic for the independence of their sex,
formed themselves into an association to propagate and practise the
(to them) ideal of children outside the tie of marriage, I should not
think the state entitled to interfere with its work. So, too, I should
argue, with a principle like birth-control. The state is not entitled
to prohibit diffusion of such knowledge, or the practice of it. When it
does, it makes the family nothing more than an instrument of fecundity,
and destroys the whole character of that right to privacy which is the
foundation of harmonious sexual relationship.
I argue, therefore, that voluntary bodies are entitled outside the
realm where their ideas and conduct are intended directly to alter the
law, or to arrest the continuity of general social habits, to believe
what they please and to practise what they please. This would not
permit a body of burglars to take over from Proudhon the principle that
property is theft and assume their right to restore it to themselves;
but it would justify, to take the case of principles I personally
abhor, a society of Mormons practising polygamy in a society like that
of the United States. Let me turn from this to the political field. I
take first the question of the right of the state to control freedom
of association in the industrial sphere. Practically speaking, the
question reduces itself to one of whether the state is justified in
limiting the power of a trade union, or of a combination of trade
unions to call out its members on strike. I want to put on one side the
technical juristic questions involved and to discover, if I can, the
justice of the general principles which underlie the problem.
These are, I think, broadly four in number. It is argued that the state
has a right to prohibit a general strike on the ground that this is
an attempt to coerce the government either directly, by making it
introduce legislation which it would not otherwise do, or indirectly,
by inflicting such hardship on the community that public opinion forces
the government to act. It is said, secondly, that the state is entitled
to prohibit those whom it directly employs, for example postmen, from
either going on strike, or affiliating themselves with any organization
the nature of which may compromise the neutrality of the government.
It is said, thirdly, that certain industries, railways, for example,
or electricity supply, are so vital to the community that continuity
of service in them is the law of their being, and that, therefore,
the right to strike can be legitimately denied to those engaged in
them. It is argued, fourthly, that a limitation upon the purposes of
trade unions, so that they are confined within their proper industrial
sphere, is also justified.