According to Tacitus, Augustus was the first ruler to undertake to punish a word writ ten or spoken. The writings of Vejinto were suppressed by Nero. Concerning this incident Tacitus remarks, "so long as the possession of these writings was attended with danger, they were eagerly sought and read; when there was no longer any difficulty in securing them they fell into oblivion." From 150 A.D. and on, the Church increasingly made it a practice to issue edicts against books. The fifth Council of Lateran, 1516, adopted a papal constitution which recited the injury to faith, morals and the public peace arising from the increasing number of books opposed to religion or mak ing libelous attacks on individuals. In Scot land in 1585 the authors of libels against the king of Scotland were punished with death, and it was the king or his servants who determined whether the king had been libeled. In 1680 12 English judges solemnly resolved "that all books which are scandalous to the government may be seized and all persons so exposing them may be punished. And further, that all writers of news, though not scandalous, seditious nor reflective upon the government or State, yet, if they are writers (as there are few else) of false news, they are indictable and punishable on that account.° As late as 1808 a high judi cial authority declares that it is "not to be permitted to any man to make the people dis satisfied with the Government under which he lives" Milton's (1644) tells with matchless force how great were the efforts made to "stifle the voice of argument, to ban and proscribe the press" or compel it to utter only such sentiments as meet the approval of those in authority. From the outset the prob lem was not whether a person ought or ought not to be free to publish whatever idea he believed to be true and good, but whether that was for the public good and safety. The free publication and distribution of literature advo cating doctrines sufficiently antagonistic to the existing order to cause a war plainly could not be permitted, at least so it would seem. The champions of a free press saw clearly enough that this was after all by no means the point at issue. They had no desire for freedom to stir up rebellion, to slander and defame and lead astray. There were a thousand and one things that were all wrong in the existing order and all they asked was freedom to dis cuss the faults and follies, the corruptions and defects, and bring forward if possible ideas which could he made the foundations of a better social and political order. To the charge that the ideas being advocated by those who demanded freedom of speech and press were abominable and menacing error and could lead only to anarchy the reply was that "error of opinion may he tolerated where reason is left free to combat it" or to use the words of Mill, "complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for pur poses of action; and on no other terms can a being with human faculties have any rational assurance of being right," and so to prohibit discussion and free publishing of opinion is to "determine the judgment by an influence other than reason." Furthermore it could be effec tively answered that the opponents of liberty of speech and press were assuming not only the responsibility of maintaining public order and safety but were claiming infallibility of understanding and judgment. Dr. Robert Hall in his address "An Apology for the Liberty of. the Press" (1793) presents the matter in another fashion, "When a nation forms a gov ernment, it is not wisdom but power which they place in the hands of a magistrate; from whence it follows, his concern is only with those objects which power can operate upon. On this account the administration of justice, the protection of property, and the defense of every member of the community from violence and outrage, fall naturally within the province of the civil ruler, for these may all be accom plished by power; but an attempt to distinguish truth from error, and to countenance one set of opinions to the prejudice of another is to apply power in a manner mischievous and absurd. ° That was the basis of the contention: the government whose chief business it is to preserve order by punishing crime transcends its authority and function when it proposes to determine whether this or that opinion is true. As Mill points out, when it comes to the gov ernment's passing judgment on the impiety or falseness of a word written or spoken, the cases of Socrates, of Jesus and of many others indi cate the menace of such exercise of authority. When a person utters sedition or incites to crime he is hardly expressing an opinion, he is plainly guilty of criminal conduct. Words are sometimes deeds. Beginning with Milton's masterly defense of the liberty of the press there is manifested a slowly growing apprecia tion of the need and the possibility of keeping the press and speech free without giving free rein to those who are criminally minded. That this became the attitude of judicial authorities is seen in the opinion of Lord Wyn ford in Rex v. Burdett: "My opinion of the liberty of the press is that every man ought to be per mitted to instruct his fellow-subjects; that every man may fearlessly advance any new doc trines, provided he does so with proper respect to religion and government of the country that he may point out errors in the measures of public men, but he must not impute criminal conduct to them. The liberty of the press can not be carried to this extent without violating another equally sacred right, the right of char acter. . . . Where vituperation begins, the liberty of the press ends.° Of much more im portance in the history of the struggle for a free press is the earlier incident of the trial of John Peter Zenger in New York, 1735, for "publishing a false, scandalous and seditious libel, in which . . . the king's immediate
representative here is greatly and unjustly scandalized." It established once and for all in North America "that in prosecution for libel the jury were the judges of both the law and the fact.° Even more significant is the temper of the people which this trial revealed. The jury despite explicit instruction of the court to the contrary brought in a verdict of "not guilty." The mass of the people had come to see that the highest public welfare and safety depended upon the right of man to pro test freely against and expose publicly all wrong doing, particularly any evil doing or oppression of rulers. This right, as already pointed out was clearly embodied in the Con stitution of the United States and the con stitutions of several States some 50 years later. But Louisiana in the constitution adopted in 1868 puts it down quite explicitly "printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof." This same constitution recognizes very emphatically the fact of life which moved the most scholarly and large minded of men to champion the cause of a free press, viz.: that political and economic and intellectual freedom and progress, without which life is less than human, are impossible without liberty to speak and publish one's thoughts and opinions. So the Louisiana constitution continues: "The free communication of thoughts and opinions is one of the most invaluable rights of man and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that The fundamental laws of most nations as reconstituted or modified during the last century attempt to provide for the "free communication of thoughts and opinions" without conferring the right to com mit what may properly be regarded as crime. A few instances will serve to give the general situation. The Belgian Constitution of 1831 declares that the press is free, that censorship shall never be established; sureties shall not be exacted from writers, editors, printers, and when the author is known and domiciled in Belgium the printer and bookseller cannot be prosecuted. But an author or .speaker must not incite to crime or disobedience of the law; nor may he attack the constitutional authority or inviolability of the dynasty, nor the au thority and rights of the chambers. In Italy the press has been free under fairly reasonable restrictions since the law of 1848, but Spain led the way among European nations. The con stitution of 1812 promulgated by the regency in the name of Ferdinand VII provides "that all Spaniards shall have liberty to write, print and publish their political ideas without any neces sity of license, examination or approbation previous to publication," subject of course to restrictions imposed by law. Austria-Hungary in the fundamental law of 1867 declares every one has the right of freely expressing his thoughts within the limits imposed by law. Germany, in the constitution of the empire, de clares the press to be free subject to usual limitations of law. The law of 1878, however, gives the police very large powers over the socialistic press. The French law of 1881 be gins by asserting the liberty of the press and bookselling under certain restraints which are plainly designed in the interests of justice and the public weal. Qualifying these constitu tional declarations of freedom by certain re strictive laws. while in theory a contradiction of the principle, in fact is hardly so. It is only what the constitution of Louisiana means by declaring that a person is to be held "re sponsible for the abuse of that liberty." Her bert Spencer puts du: matter clearly enough: "So long as he does not suggest the commis sion of crimes each citizen is free to say what he pleases about any or all of our institutions — even to the advocacy of a form of govern ment utterly different from that which exists, or to the condemnation of all governments." Censorship in war-times can hardly be pointed out as denial or as overthrow of the principle of a free press now so fairly well established. It will hardly be held that anyone has• any more of a right to say or write a word which will lend aid and comfort to the enemy than he has to aid an enemy by armed insurrection. The ease and speed with which information can be transmitted makes it necessary to put the publishing of -news in war time under re strictions hitherto undreamed of. Writers on this subject of a free press have felt it neces sary to direct attention to the menace contained in the "Act of Congress approved 26 Sept. 1888" and the former act of 1878 which designed to prevent distribution through the mail of obscene matter and matter offensive to the public taste. The menace is not in the thing aimed at but in the fact that it gives to an official in the Post Office Department abso lute power to determine whether an article in a newspaper or periodical or a chapter in a book is obscene or offensive to good taste, and from his decision there is no appeal, and no re dress even if he should be wrong. No less a man than Thomas Erskine a century ago pointed out the serious menace in allowing any individual; or even a self-appointed group of individuals, to determine what is offensive to good taste. It is not likely that the liberty of the press will have to be fought for again.
The bibliography on this subject is scattered and the subject is usually discussed as a part of the larger subject of personal and individual liberty. Milton, John, 'Areopagitica,' is the great classic; consult also Mill, J. S., 'Essay on Liberty> • 'Trial of John Peter Zenger); Putnam, G. 'H., 'Books and Their Makers in the Middle Ages); Schroeder, T., 'Free Press Anthology.'