The Permission Society. Timothy Sandefur

       PRIOR RESTRAINT OF SPEECH

      WHEN WILLIAM BLACKSTONE boasted in his Commentaries on the Laws of England that the British enjoyed more freedom than the people of virtually any other nation in history, he was right. Not only did British subjects enjoy religious toleration, but they were also not required to obtain government permission before publishing a book, pamphlet, or newspaper. Writing in the 1760s, Blackstone viewed this rule against “previous restraints on speech” – what lawyers today call “prior restraint” – as one of the common law’s many noble protections for individual freedom.

      But it was only in 1695, less than a century before Blackstone wrote, that British law prohibited prior restraints. Before then, the law required anyone wishing to print a book or pamphlet to first get permission from officials at the royal Stationer’s Company.¹ That requirement provoked one of the most famous episodes in the history of free speech when, in 1643, the poet John Milton published his scandalous pamphlet, The Doctrine and Discipline of Divorce, without a government license.

      The 34-year-old Milton, already beginning to lose his sight, had married 16-year-old Mary Powell a year before. Chafing at life with her puritanical husband, Mary soon moved back in with her parents, prompting her husband to write the pamphlet arguing that divorce should be legalized – a shocking proposition in seventeenth-century England.² But the radical Milton believed that God had created marriage to cure man’s loneliness, not merely to breed children. Being married to an uncongenial person, a person with whom one had nothing in common and could not share life’s joys, only made loneliness worse. It was therefore more sinful, he maintained, to stay in an unhappy marriage than to separate. As for biblical passages proscribing divorce, they had just been misinterpreted.

      These arguments scandalized the Puritan clergy. When the pamphlet was published, a member of the House of Commons denounced it and demanded that it be censored and burned. Milton had not even tried to obtain the required license before publishing, he noted. A disgusted Milton shot back with a new pamphlet, again unauthorized, called Areopagitica. To this day, it remains the most eloquent defense of free expression ever written.

      Censorship was worse than murder, Milton wrote, for “who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God.” The idea that government should impose permit requirements on publishing to protect readers from bad or dangerous ideas was an insult to truth itself, which would always defeat falsehood “in a free and open encounter.”³

      The idea of requiring approval from a government licenser before a book could be published struck Milton as not merely wrong, but un-English and anti-Protestant. The whole point of the Reformation, he thought, was to vindicate the right of believers to understand Christianity without the intercession of religious or political authorities. And the state of the Catholic countries he had toured as a student seemed to him evidence enough of the dangers of persecution. He recalled visiting the elderly Galileo in Italy, “a prisner to the Inquisition, for thinking in Astronomy otherwise then the Franciscan and Dominican licencers thought,” and he remembered how Europeans who learned he was from England had congratulated him on living in a country free of censorship. Milton had known at the time that this was untrue, but “neverthelesse I took it as a pledge of future happines, that other Nations were so perswaded of [England’s] liberty.” He was distressed now to discover “that what words of complaint I heard among lerned men of other [nations] utter’d against the Inquisition, the same I should hear by as lerned men at home utterd in time of Parlament against an order of licencing.”⁴

      Milton’s arguments for abolishing the licensing requirement raise many of the same concerns about other types of permit requirements discussed in the previous chapter. The bureaucrats who enforced the licensing laws were a “mercenary crew of false pretenders to learning,” who often struck out important or inoffensive passages from manuscripts or demanded changes that only confused readers. Books emerged from censorship boring and full of mistakes. Banning books was counterproductive, in any event, because it only piqued people’s curiosity about what the forbidden writings contained. “[I]nstead of suppressing sects and schisms,” the prior restraint of the press “raises them and invests them with reputation.”⁵ In fact, if the government hoped to abolish improper or sinful writing, it would have to do much more than simply require licenses – it would also have to burn the many sinful books already in existence. And why stop there? Why not censor all personal behavior?

      Prior restraints were unnecessary, Milton continued, because truth could defend itself.⁶ Books full of error and evil were still valuable as models of what to avoid. A people whose government did not let them see bad ideas would be intellectually disarmed if they ever encountered real sin. Such a government could at best cultivate only “a fugitive and cloister’d vertue, unexercis’d & unbreath’d,” that would “slink out of the race” if it ever crossed paths with a truly heretical idea. What good would that do? “Assuredly we bring not innocence into the world” when we try to shield people from the rough facts of life. Instead, “we bring impurity,” because “that which purifies us is triall, and triall is by what is contrary.”⁷ Worse, to put the government in charge of personal virtue encouraged people to be lazy about their own morals. “What need they torture their heads with that which others have tak’n so strictly[?]”⁸ A person who “is not trusted with his own actions” when it comes to reading would have no reason take his duties as a citizen seriously, since he could hardly “think himself reputed in the Commonwealth.”⁹

      Eloquent as Milton’s arguments were, they failed to persuade. England kept its licensing requirement in place for another half century, and when at last it was abolished, it was not a bold vindication of individual freedom but an almost silent acquiescence on Parliament’s part. In 1695, the Licensing Act came up for renewal and was quietly allowed to lapse.¹⁰ Amazingly, this moment – the birth of free speech in the Anglo-American world, which the historian Thomas Macaulay said “has done more for liberty and for civilisation than the Great Charter or the Bill of Rights” – came without any eloquent appeal to the glorious cause of intellectual liberty. When the House of Commons explained its reasons for withholding renewal, it cited only the difficulty, expense, and embarrassment caused by trying to enforce the act. “Such were the arguments,” Macaulay wrote, “which did what Milton’s Areopagitica had failed to do.”¹¹

      The First Amendment and Prior Restraints

      The fact that Parliament’s abolition of prior restraint was no vindication of the principles of free expression is made still clearer by the limits that remained in place. British law still harshly punished blasphemy and sedition. Blackstone and other British lawyers argued that these rules did not contradict the freedom of press because they did not require government permission prior to publication – they only punished a person after publication.¹² Yet given how brutal these punishments could be, that seemed a dubious technicality. In 1792, Thomas Paine was tried in absentia for the crime of seditious libel for publishing his antimonarchical pamphlet