John Stuart Mill and Freedom of Expression

The Genesis of a Theory

K.C. O'Rourke

• Publisher: Routledge
• Year: 2003
• Topic: Business
• eBook ISBN:
  9781134526574
• Subtopic: Business General
• Index: Business

The arguments advanced in the second chapter of On Liberty (1859) have become the touchstone for practically every discussion of freedom of speech, yet the broader development of John Stuart Mill's ideas concerning intellectual liberty has generally been neglected. This work attempts to fill that lacuna by looking beyond On Liberty, in order to understand the evolution of Mill's ideas concerning freedom of thought and discussion.

Part I

1 A worthy successor

In January 1807, when John Stuart Mill was less than one year old, the Edinburgh Review published an article which held that ‘The liberty of the press is, indeed, the most inestimable security of … a people, because it gives that tone to the public feelings, on which all liberty must ultimately rest’.¹ Such words could have been used to describe the position subsequently defended by Mill throughout his life. After his death in 1873, John Morley wrote of him in the Fortnightly Review that: ‘The value of [his] wise and virtuous mixture of boldness with tolerance, of courageous speech with courageous reserve, has been enormous’; and that this disposition, in conjunction with the famous second chapter of On Liberty in support of freedom of expression, ‘has been the chief source of that liberty of expressing unpopular opinions in this country without social persecution, which is now so nearly complete, that he himself was at last astonished by it’.² Unquestionably, Mill's influence on the issue of freedom of expression in nineteenth-century Britain (and further afield) was enormous. Yet, in the course of his life, the platform from which he addressed the question changed: initially emphasising the political importance of the freedom of the press for good government, he later stressed the social importance of freedom of thought and discussion for individual development. Moreover, he held that both viewpoints could be defended within a utilitarian framework. The route which he followed from the issues of his youth to the issues of his later life involved contact with a wide variety of thinkers. To trace that route and to examine the influence of those thinkers on his approach to freedom of expression is the goal of the present work.

James Mill and the liberty of the press

The author of the 1807 Edinburgh Review article on press freedom cited above bemoaned the fact that ‘the liberty of the press does not exist, nor ever did exist in England, but by connivance’.³ In 1811 James Mill, also writing in the Edinburgh, quoted the earlier article with approval to demonstrate that ‘the opinions which we now deliver have not been hastily adopted, and are not the immediate suggestion of any particular occurrence to which the public attention may have been recently attracted’.⁴ The elder Mill questioned the wisdom of the undefined nature of the law of libel as it then existed in Britain, and defended the notion that

If men would only employ a little patient consideration in forming their notions, we should not despair of getting all but a few, to join with us in opinion, that, so far from the freedom of the press being the cause of the French revolution, had a free press existed in France, the French revolution never would have taken place.⁵

This radical position on the question of press freedom and libel law became a regular and favourite idea of James Mill.⁶

That the importance of freedom of thought was impressed by James Mill on his eldest son in this early period is related by John Stuart Mill in the posthumously published Autobiography.⁷ It is not surprising, therefore, that this topic constitutes the subject of some of John Stuart Mill's earliest published writings, along with tracts against religious persecution and the law of libel as it was enforced in England in the opening decades of the nineteenth century. We can be in no doubt that he perceived a connection between the practice of religion and the right to freedom of expression: in the Autobiography he explicitly defines the Reformation as ‘the great and decisive contest against priestly tyranny for liberty of thought’.⁸

The topic of freedom of expression remained close to the heart of James Mill throughout his eldest son's formative years: subsequent to the 1811 article, he yet again addressed the subject in the Edinburgh Review in 1815,⁹ and in 1821 he proposed that he himself should undertake the entry on liberty of the press for Macvey Napier's fifth edition of the Encyclopaedia Britannica.¹⁰ The piece, in addition to his articles on government and jurisprudence, was soon acknowledged as a classic defence of the radical cause, and was reprinted subsequently as a pamphlet. Jeremy Bentham's interest in libel and press freedom also continued after The Elements of the Art of Packing: he wrote a series of letters to the Spanish people on this very topic in October 1820, urging them to resist any imposition made upon the liberty of their press by laws being drafted at that time, on the grounds that ‘whatsoever evil can result from this liberty, is everywhere, and at all times, greatly outweighed by the good’.¹¹ For Bentham and James Mill alike, the freedom to discuss ideas in public and to criticise government institutions was an essential element in the struggle against corruption among the ruling classes, a topic at the heart of the agenda of the group of radical thinkers which centred around Bentham. Their ideas were reflected in the growing discontent with traditional models of government and society.

Growing up in the aftermath of the French Revolution, the young Mill was stimulated by the widespread debate concerning reform of the British constitution. Throughout the country, the possibility of a similar revolution was widely feared: ‘Many persons felt that society was resting on crumbling foundations, and this made every expression of discontent … appear ominous.’¹² Opinions which supported the need for reform were viewed with suspicion by those in power, while any opinion which attempted to undermine Christianity was regarded as an attack against the very heart of law and order itself. Yet long-held ideas concerning religion, government and the status quo were being questioned openly. That the lower classes – now becoming more literate and consequently susceptible to influences from a far broader spectrum of ideas than their forefathers – should begin to question religious principles, or have a right to question their own status or the status of their ‘betters’, was considered especially dangerous. In 1821, one newspaper observed that:

The libels of former times were only read by the higher classes, which possessed the means of detecting their falsehood – those of the present times are exclusively read by the lower orders, who are destitute of all means of arriving at the truth … Former libels attacked only measures of policy and men – present ones attack laws and institutions. Former libels were only intended to drive a ministry from office – the object of the present ones is to dethrone the King and overthrow the Constitution. Moreover, to render their effects still more destructive, the poison of a great number of them is spewed forth on the Sabbath.¹³

In the years of John Stuart Mill's youth, a person could be found guilty of libel by instilling dissatisfaction with the government or the constitution: freedom of the press was freedom within the confines of the law, and was certainly not unrestricted. In 1811 James Mill's article in the Edinburgh Review had cited a legal case where it had been pointed out that

if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expression be ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law: – It is a crime.¹⁴

The elder Mill commented:

Now, to point out any fault in the government undoubtedly tends to bring, so far, the government into disesteem. Therefore, to point out any fault in government, is a liberty not allowed to the press by the law of England.¹⁵

The term ‘libel’ at this time was used in relation to any expression of opinion in the press, including the publication of facts: truthful utterances could be libellous if they were considered disagreeable by a judge, thought likely to disturb the peace or otherwise to cause widespread dissatisfaction. Truth or falsity were irrelevant: in fact, ‘the greater the truth, the greater the libel’ was a popular idiom of the time which reflected the reality of the law.¹⁶ From the very beginning of his career as a writer and thinker, at the time of what he later called his ‘youthful propagandism’, John Stuart Mill clearly placed himself on the side of those who held and professed opinions which sought to overthrow the old political order and to replace it with an order based on reason and consensus, where rational debate won the day and intellect triumphed over the blind acceptance of tradition.¹⁷ Looking back on that period fifty years later, Mill commented:

Freedom of discussion even in politics, much more in religion, was at that time far from being, even in theory, the conceded point which it at least seems to be now; and the holders of obnoxious opinions had to be always ready to argue and reargue for the liberty of expressing them.¹⁸

Mill specifically mentions Richard Carlisle, whose position at the forefront of the movement to establish a free press at the time was notorious, and who doggedly defied all attempts to silence him. In 1817, Carlisle began deliberately to provoke the government by publishing works considered immoral. Imprisoned initially for publishing political parodies which mocked the Church of England, upon his release he used Sherwin's Weekly Political Register to serialise the works of Thomas Paine. (Paine had been tried and prosecuted for publishing his unorthodox ideas concerning religion and politics almost thirty years previously.) Encouraged by the lack of government response, Carlisle next reprinted Paine's political writings in two volumes. Subsequently in 1818 he published Paine's Age of Reason, a work which challenges Christianity and the nature of revealed religion.¹⁹ The radical press was, in turn, encouraged by the success of men such as Carlisle and started to become more outspoken.²⁰ Growing discontent with the prevailing political situation also manifested itself in meetings and public gatherings convened to address the problems discussed in the press. In August 1819, such a meeting was called at St Peter's Fields in Manchester to consider the most appropriate means of pressing reform on parliament. As Henry Hunt (a Radical for whom a warrant had been issued) was about to address the meeting, armed constabulary attempted to arrest him. The crowd was charged, resulting in the death of eleven people and the injury of over four hundred. Carlisle had been in attendance and subsequently published an eyewitness account of the ‘Peterloo’ massacre. Outrage at the actions of the yeomanry was echoed in newspapers and journals up and down the country, and calls to arms became the demand of the day.²¹

The official response to the widespread unrest came in December with the passing of the ‘Six Acts’, two of which related directly to the freedom of the press. One allowed for the confiscation of all copies of any published work deemed libellous and, in the event of a second offence, banishment of the author. Another attempted to enforce a strict code of practice on newspapers by introducing criteria regulating subject matter, frequency of publication, and size and amount of paper used, imposing a minimum price of 6d (excluding the 4d stamp duty). To sell unstamped publications was to be an offence punishable by fine. Moreover, printers and publishers of newspapers covered by the new laws were obliged to pay a predetermined security in advance of publication against any possible libel fines which they might subsequently incur. These measures were explicitly intended to crush the growing circulation of radical newspapers and, in consequence, to reduce demands for reform. As Lord Ellenborough explained to the House, having stressed that the bill was being introduced because of the ‘pauper press’:

The mischief arising from them in the deception and delusion practised upon the lowest classes by means of the grossest and most malignant falsehoods, was such that it threatened the most material injury to the best interests of the country, unless some means were devised of stemming its torrent.²²

Against the background of an overbearing regime which regarded the silencing of controversy as necessary to the well-being of society, James Mill's Encyclopaedia Britannica article on the liberty of the press was a radical and brave stance. This article, although composed subsequent to – but not independently of – his articles on government and jurisprudence, provided the theoretical basis for most of John Stuart's thought and early writings on the subject of freedom of expression.²³ The piece begins with the admission that ‘The offences capable of being committed by the press are indeed nearly co-extensive with the whole field of delinquency’; it proceeds to investigate the role of the press, briefly in relation to individuals and, for the main, in relation to government; and it closes with an examination of the possible limitations which can be imposed on freedom of discussion in general.²⁴

James Mill's article assumes that when a published libel upon a private individual is proved in court, that individual should receive appropriate reparation. If the general public continues to believe the libel after such a ruling, it must be because people are aware of additional facts which were not available to the judge, or else because the general public is unable to form correct opinions based on factual evidence. If the latter is the case, then

it is the fault of the legislature; and for the rectification of this evil, the best course undoubtedly is, to take effectual measures for the instruction of the people, which instruction would soon place them beyond the danger of such delusions.²⁵

However, such a course of action would not prove attractive to a government wishing to keep society in a servile state of mind and which therefore maintained an interest in keeping education and truth from the majority. It would not be until the interests of the rulers and the interests of its citizens were at one that good government could be achieved. This was the central thesis of the article ‘Government’ and one of the main themes famously attacked by Thomas Babington Macaulay in the Edinburgh Review.²⁶ Among the many criticisms raised by Macaulay was the vague and indeterminate nature of such ‘interests’ – a criticism echoed in recent interpretation of On Liberty, where the notion of interests has again become prominent.²⁷

For James Mill, the liberty of the press provides a means whereby resistance to corruption in government becomes possible. Such a possibility must always be left open or the people are inevitably left in misery and degradation. In matters of governm...

Table of contents

• Front Cover
• Half Title
• Routledge Studies in Social and Political Thought
• Title Page
• Copyright
• Contents
• Preface
• Acknowledgements
• Introduction
• PART I
• PART II
• PART III
• Notes
• Bibliography
• Index