Blackstonian Free Speech

I have finally started reading The Great Dissent by Thomas Healy. It’s history of how United States Supreme Court Justice Oliver Wendell Holmes came to write a famous defence (or should I write defense?) of free speech in the case Abrams v. United States. It’s a fascinating account of how someone with entrenched conservative views changed his mind, and also a useful potted history of the concept of free speech. I’m making plenty of notes and bookmarking several passages.Including this one:

With that statement, Patterson [a 1907 U.S. Supreme Court case] enshrined into law what was known as the Blackstonian View of free speech. According to William Blackstone, the preeminent English jurist of the eighteenth century and a major influence on colonial legal thinking, free speech “consists in laying no previous restraints on publications, and not in freedom from censure for criminal matter when published.” In other words, individuals are not required to obtain government approval before speaking, but once they open their mouths (or take up their pens), all bets are off; they can be fined or jailed for the most innocuous comments. Blackstone’s view was actually a significant breakthrough for civil liberties in England. For much of the seventeenth century, Parliament had operated a licensing system that banned any publication not approved by an oflicial censor—a system that inspired Milton’s famous plea for free speech in Areopagitica. To early twentieth-century progressives, however, the Blackstonian position seemed pinched and formalistic. What was the point of free speech if you could still be punished for anything you said? The government might as well appoint a censor, since at least then you would know ahead of time whether your words could land you in jail.

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