Freedom of Speech and Its Legal Foundations

The recent assassination of Charlie Kirk in America has led to heated debates on politics, freedom of speech, education and media problems, culture and gun violence. Freedom of speech is a huge topic. This write-up is limited to its origin. In future writeups, I shall continue other aspects of this topic.  

Intended readers of this writeup are mainly Chinese. Note that China and Western politics belong to different paradigms. Mainland Chinese do not understand American (and Western) politics because the rule of law is completely foreign to Chinese political philosophy. In other words,. Their “understanding” of American politics is at best partial or distorted, at worst inverted. In fact, this is not limited to Chinese. My Western friends also misinterpret politics or laws (some because they studied science and technology). The differences are that their framework is largely correct, they just do not have sufficient philosophical, religious, and historical background to interpret them correctly. (The Appendix quotes relevant passages. Although they are not part of this writeup, they might be useful.)

Let us start from the beginning. Rule by law was introduced first, the rule of law was developed later. The rule by law was first introduced about 3700 years ago in Mesopotamia (美索不达米亚, roughly today’s Iraq). Gradually, many nations (including almost all Mediterranean nations) had adopted rule by law.  Later, the rule of law was developed. Rome became a republic around 570 B.C. while Athens was a democracy before 400 B.C. The rule of law is essential to either republic or democracy. If there is no rule of law, then neither republic nor democracy is possible. 

The Roman Empire was overrun by barbarians and was dissolved into many small political entities. The rule of law largely disappeared. Only remnants of Roman laws existed in some European societies and monasteries. In the late 11th century Pope Gregory VII started the Pope Reformation. The Pope reintroduced the rule of law in Christendom. The first group of universities (Bologna, Paris, Oxford, Cambridge) were established to carry out this reformation. The jurisprudence was based on three: the Bible, Roman Laws, and Greek Philosophy. I argue that the rule of law is critical to liberal democracy. I suspect that Russia’s failure to transform to a liberal democracy was largely due to the rule of law not established in Russia. 

We now turn to freedom of speech. There was a long history of what speech was allowed and what was not. But no universal law on freedom of speech had been established until the US Constitution. The First Amendment of the US Constitution says: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is well-known that the US inherited many institutions from England, including the rule of law. However, freedom of speech is not among them. In fact, today’s England still does not have a law to protect freedom of speech. [1] is an example that happened in England not long ago.   

Note that the First Amendment includes freedom of religion, freedom of press, freedom of assembly, besides freedom of speech. After the Protestant Reformation started in 1517, Christians in Europe were divided into many denominations. It was conventional then for each nation or state to establish an official religion (Westphalia Treaty 1648). When America gained independence, there were thirteen states. Citizens of these states were predominant Christians but fell into different denominations. Among the thirteen states some had established state religions while others did not. Many settlers came to America because they wanted religious freedom. It would be controversial to choose one denomination to be the official religion for the whole nation.  (Most American citizens at that time were Christians, though some were agnostics or atheists.) Freedom speech was derived from freedom of religion (this deserves some explanation but I leave it to the future). This is why both freedom of speech and freedom of religion were in the same amendment. 

A few points before closing. First, freedom of speech never means: I can say what I want to say. Second, China evolved in a completely different path. The rule of law requires that everyone is under the law, thus equal at least from a legal point. On the other hand, Confucius presumes the emperor is higher than anyone else, thus above the law. Third, freedom of speech is not absolute. In other words, there are exceptions. See references below. 

One needs to study a lot of books. (A law degree usually requires a university graduate to study 3 or more years) John Charvet’s Liberalism is a very good book [2]. The book claims no prior knowledge is required. It still could be difficult for many to understand. However, even if you cannot fully understand, the book is invaluable because it is systematically organized. Another nice approach is that this book addresses liberal democracies at three levels: practices, values, theories. This may help readers to organize one’s knowledge. Jonathan Turley [3] explains why freedom of speech is an indispensable right. He is a good teacher. Brian Z. Tamanaha’s book [4] is a textbook on the history of the rule of law. It is not difficult. Although it has some shortcomings, it is still useful for readers to use it as an introduction on history of law. In particular, it explains that "the laws must be general, equal and certain." These were proposed by Friedrich August Hayek, although these ideas were known centuries earlier. The classical history of modern rule of law is [5]. 

I plan to discuss Charlie Kirk’s assassination further in the future. In the meantime, I recommend a few videos. [6] BOR gave an excellent explanation on Jimmy Kimmel’s dismissal. (I will explain this more later). [7] is perhaps the best commentaries so far. It (All-in) is a well-known podcast (most subscripted). Because it is well-known for high-tech and the topic here is politics, it was not high on my list. As it turns out, this is the best for this case because it gives statistics, culture background, good analysis, etc. [8] is also high quality but a bit too academic for some. [8] does give a broad and historical context. 

References: 

[1] Father Ted creator Graham Linehan arrested in the UK over transgender posts on X - ABC News  

[2] John Charvet, Liberalism: The Basics, Routledge, 2018 

[3] Jonathan Turley, Indispensable Right: Free Speech in an Age of Rage, 2024 

[4] Brian Z. Tamanaha, "On the Rule of Law: History, Politics, Theory," Cambridge University Press, 2004.

[5] Harold J. Berman, "Law and Revolution, The Formation of the Western Legal Tradition," Harvard University Press, 1983.  

[6] *The Dismissal of Jimmy Kimmel (9-20 BOR) 

[7] *Charlie Kirk Murder, Assassination Culture in America, Jimmy Kimmel Suspended, Ellison Media Empire (9-20) 

[8] *Niall Ferguson on Preserving Liberty After Charlie Kirk's Senseless Murder (9-19) 

Appendix: 

Francis Fukuyama, "Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy," Farrar, Straus and Giroux,  2014.  p.357 

China represents the one world civilization that never developed a true rule of law.  In ancient Israel, the Christian West, the Muslim world, and India, law originated in a transcendental religion and was interpreted and implemented by a hierarchy of religious scholars and jurists.  The keepers of the law in each case were a social group separate from the political authorities -- Jewish judges, Hindu Brahmins, Catholic priests and bishops, the Muslim ulama.  The degree to which the law limited the arbitrary power of rulers depended on the institutional separation of legal-religious hierarchy from the political one, as well as the degree to which one or the other group was united or divided.  This separation …… 

In China, by contrast, there was never a transcendental religion, and there was never a pretense that law had a divine origin.  Law was seen as a rational human instrument by which the state exercised its authority and maintained public order.  This meant that, as in Japan, China had rule by law rather rule of law.  …… Rights were rather the gift of a benevolent ruler.  ….   

中国代表世界上一种从没有发展真正法治的文明。古以色列，基督教的西方，穆斯林世界，和印度，法产生于一种超越的宗教并且存在有组织的宗教学者和法学家解释和贯彻它。每种情况下一批与政治权势分开的社会群体专门负责法：犹太法官，印度波罗门族，天主教神父和主教，穆斯林欧莱玛((Ulama) 。法在多大程度上限制统治者的权力取决于宗教和政治在机制上分开还是结合的程度。这个分别在西欧最突出，十一世纪后期的 investiture conflict 使教廷能够任命自己的教职人员。欧洲在国家建立以前已经先有了法治，这与中国成鲜明对照，中国在国家建立以前没有法不存在法治。

 Pp.357-8 

与欧洲相比，中国从来不存在超越的宗教，所以中国的法从来没有神圣来源。法被看作国家行使权力和维持公共秩序的工具。这意味着类似于日本，中国过去只有法制没有法治，法的最终来自统治者。虽然法律可能不存偏见的实现，但这与公民是否有自有权利无关。权利来自统治者的赏赐。公平是为了公共秩序的考虑。这是为什么古中国一般只考虑个人与政府的法律，而很少考虑其它法律，例如人与人之间的法例如合同法，侵权等。