Today, everyone agrees that the press must be free, but not everyone attaches the same meaning to this word, freedom.
Pétion de Villeneuve, Discours sur la liberté de la presse, 1791
On her way to the scaffold in November 1793, Madame Roland showed remarkable poise, even cheerfulness according to some accounts. Whereas others condemned to the guillotine succumbed to cackling or fits of hysterical laughter (in the morbid wit of Le glaive vengeur, they had already “lost their heads”), she appeared entirely “indifferent to her fate.”1 Legend has it that before mounting the guillotine, she fixed her gaze on a statue of Liberty by Jacques-Louis David in the distance and cried out, “Oh liberty, what crimes are done in your name!”2
A year earlier, however, Madame Roland and her husband, the Minister of the Interior, believed that liberty without limits made no sense. In their essay on public spirit, they characterized the acts of censuring the law and dishonoring magistrates as crimes worthy of exclusion from the social body. It is doubtful, of course, that they had executions foremost in mind. As their efforts to spread public spirit suggest, they wanted to see civic consciousness raised, not calumniators killed. Still, the bluster of their statements reflected the general climate of intolerance. It expressed the anxieties and frustrations generated by years of unchecked calumny and weak political legitimacy.
This study has examined how the culture of calumny and honor and the problem of free speech fueled such anxieties and frustrations after 1789, contributing to radicalization and terror. I have shown how the advent of free speech in the Revolution’s early years disrupted traditional patterns of honor, esteem, and deference. As old mechanisms for dealing with affairs of honor broke down and new ones failed to function, resentments escalated and became politicized. Although institutions for managing honor had failed in the past, notably during the Fronde, the rise of civil equality complicated matters. It forced revolutionaries to rethink legitimate limits on speech at a time when their own legitimacy was uncertain and their ability to command deference and contain violence virtually nil. The Terror reflected their predicament. Pressured to satisfy punitive demands coming from society and factions (lest they themselves become targets), authorities acted on those demands even as they tried to mitigate them through “public spirit” campaigns. If calumny and vengeance drove them into the Terror, civic morality, they hoped, would lead them out.
It is doubtful that revolutionaries’ sermons on civic virtue contributed much to ending the Terror. Still, lethal repression for speech and opinion did decline after Robespierre’s fall, at least on the official level—a surprising fact given the persistence of draconian laws against calumny. The first such law of the post-Terror period was passed on 12 Floréal, Year III (May 1, 1795). Worried about the influence of returning émigrés, Marie-Joseph Chénier, deputy in the National Convention, called for exiling for life anyone found guilty of disparaging the deputies in speech or writing. Seconding the proposal, Jean-Baptiste Louvet, former Girondin and expert calumniator himself (he had accused Robespierre of royalism in 1792), saw it as the fulfillment of the promise made in 1789. “The law we propose to you today consecrates press freedom precisely because it represses abuses of this freedom.”3 Supported within the Convention, the Chénier Law was attacked without. Among its critics, André Morellet, former philosophe and now pious reactionary, asserted that press freedom had actually been greater before 1789. He observed that when authors had been embastillés, as he had been, they could at least get writing done, and he claimed to have completed his treatise on press freedom there in the 1760s. For Morellet, stays in the Bastille constituted penance, not repression. In any case, he rejected both. “In reflecting on the freedom of the press, I could not conceive of any [legitimate] obstacle. I would overturn all the limits. I would establish this freedom absolutely.”4
Despite overwhelming support by deputies, the Chénier Law was not enforced. Several right-wing journalists were arrested in August of 1795 but were released without trial.5 Ineffectual, the law nevertheless conveyed the state’s low tolerance threshold regarding free expression. So, too, did the new Constitution. Promulgated on 5 Fructidor, Year III (August 22, 1795), it was prefaced by a declaration of rights and duties that made no mention of the right to free expression, although respect for authority figured among the duties.6 The Constitution did grant press freedom in Article 353 but tempered it with Article 355, which authorized its suspension for up to one year in times of unrest, subject to renewal. Even before article 355 was invoked, the Council of Five Hundred passed a severe press law on 27 Germinal, Year IV (April 16, 1796), calling for the death or deportation of anyone convicted of trying to overturn the Constitution “through words or writings.”7 Two months later, the radical journalist and key figure in the “Conspiracy of Equals,” François-Noël Babeuf, was guillotined.
Babeuf’s fate was exceptional. Despite severe laws (or because of them), juries in the post-Terror period were reluctant to return guilty verdicts.8 To counter such inaction, the Directory—the new executive branch composed of five Directors—sought to shift responsibility for repressing press abuses from the courts to the police. In a letter to the Council of Five Hundred in autumn 1796, the Directors complained that rakes were spreading “calumnies against magistrates, corrupting morality and mœurs, empoisoning [public] opinion, and depriving civil servants of the esteem and trust needed to carry out their functions.”9 Acknowledging that “the [current press] laws are ineffective,” they recommended “direct and indirect police action.” Some legislators shared the Directors’ disillusionment with the press. “Though their responsibilities are to improve public morality,” Michel Louis Talot observed, “[journalists today] know only how to calumniate, divide, and blacken reputations.” Others inveighed against attempts to “muzzle the press,” likening them to “those execrable [measures] that led so many writers to the scaffold.” One deputy accused the Directors of hypocrisy; after all, had not the government sponsored newspapers “in which each of us has been calumniated in the most indecent manner?”10 The Council of Five Hundred did eventually pass measures against written calumny, but they were rejected by the Council of Ancients.
Upon the coup of 18 Fructidor, Year V (September 4, 1797), and the purge of royalists from local and national offices, Article 355 of the Constitution went into effect. In the following days, laws were passed banning several newspapers and exiling those involved with them. Again, the laws were subverted. Several proscribed newspapers reappeared under new titles; others went underground. In the end, few journalists were arrested, and none were deported or executed. Paradoxically, the most rigorous repression of journalists during the Directory occurred after the Fructidor laws had been revoked two years later. In September 1799, the Directors ordered the deportation of sixty-five journalists to the Island of Oléron. They justified the measure on the specious retroactive grounds that the journalists in question had not been properly punished when the Fructidor laws had been in effect.11
Why, despite draconian press laws, did the repression of speech during the Directory not regain the lethal intensity of the Year II? One reason had to do with the decline of lèse-nation. A demagogic instrument, lèse-nation had helped revolutionaries exploit widespread sentiments of honor, indignation, and vengeance in their effort to seize sovereignty in the early years of the Revolution. After the trauma of terror and civil war, republican authorities had little desire to stoke such volatile passions. For their part, reactionaries never thought “lèse-nation” had any legitimacy in the first place. Nor did Napoleon have use for the term. Although he did much to advance awareness of the nation’s honor, he preferred the unifying effect of foreign war to the polarizing effect of political trials. In any case, by the time he came to power in November 1799, the Revolution had transformed the old culture of honor, of which lèse-nation had been a vestigial, transitional concept. Hierarchy and the sacredness of the throne had given way to civil equality and the sacredness of the nation. But the rise of civil equality did not bring about renewed emphasis on individual honor. To the contrary, as historian William Reddy notes, individual honor became increasingly “invisible” after 1795, camouflaged in the language of “self-interest.” Reddy attributes this shift to the gendered logic of liberalism; since the liberal principles of 1789 were theoretically universal, the exclusion of women from public life was achieved by naturalizing gendered conceptions of honor and relegating both honor and women to the private sphere.12 I submit that the sublimation of individual honor in public discourse owed to the traumatic experience of having democratized honor between 1789 and 1794. Contemporaries had good reason after the Terror to worry that affairs of honor might reignite conflict. In any case, as individual honor receded from public discourse, the nation’s honor grew, driving the new cult of the nation toward more virulent nineteenth-century nationalism.13
Another, more prosaic reason for the decline in lethal punishment for speech offenses after 9 Thermidor lay in the government’s improved ability to restrain popular violence.14 The currents of vengeance that had so easily passed back and forth between the legislature and the streets during the early Revolution, amplifying each other in the process, were now more effectively contained. To be sure, public order remained precarious in many places until 1800, particularly in the northwest and the Midi. But uprisings were less frequent and more often put down, at least in the capital, as the quashing of the Germinal, Prairial, and Vendémiaire uprisings of 1795 (Years III and IV) demonstrated. Those were the last uprisings in Paris during the Revolution.
Still, authorities remained vigilant. Ever worried that a well-timed calumny might set off violence, they created a battery of policing institutions to monitor, manipulate, and suppress the vehicles of public opinion, notably the theater and the press. A political hothouse during the early Revolution, the theater was now watched over by the Ministry of Police, the Ministry of the Interior, and the new municipal policing office, the Bureau central. Directors of post offices were instructed to circulate only newspapers authorized by departmental administrations, and police agents were stationed in the post offices of Paris. In requiring postage to be paid by senders rather than receivers, the government facilitated surveillance, concentrating it in cities where newspapers were printed. In 1797, the government imposed an onerous stamp duty on political newspapers; mass cancellations of subscriptions followed. The Ministry of Police set up an office to keep tabs on the press throughout France, and the Central Bureau did much for Paris. Meanwhile, surveillance reports on public opinion streamed into the capital from all parts of France, providing routine reading for high government officials.15 The government also developed a system of cultural patronage, first through the Ministry of Public Instruction, subsequently through the Interior Ministry’s Office of Encouragement, offering enticements to newspapers and theaters that promoted public spirit. Less transparently, the Directors created a bureau politique, which produced propaganda that was surreptitiously inserted into progovernment newspapers.16
Napoleon expanded upon the Directory’s policing policies. On January 17, 1800 (27 Nivôse, Year VIII), the Consulate banned sixty political newspapers in the department of the Seine and fixed the number of authorized newspapers in Paris at thirteen. It passed a decree prohibiting writings considered to be “invectives against the government” or “contrary to the respect due to the social pact, to the sovereignty of the people, to the glory of the Army.”17 A year later, it ensured state surveillance of the circulation of newspapers by requiring all mailed items weighing less than one kilogram to pass through the national postal system, thereby prohibiting alternative modes of diffusion.18 With the establishment of préfets in the departments, surveillance of the press was extended throughout France.19 Although Napoleon upheld the Revolution’s abolition of prepublication censorship for books—“I repeat,” he insisted in 1801, “I do not want censorship because I do not want to be responsible for all idiocies appearing in print”—he nevertheless had censors assigned to newspapers once war resumed in 1804.20 These policies persisted throughout the rest of his reign.
Tocqueville’s thesis that the French Revolution accelerated state centralization is clearly borne out by the policing of public opinion in the nineteenth century.21 But the Revolution also bequeathed a rich legacy of free-speech arguments, including quasi-libertarian ones. “Absolute freedom of the press,” which had meant the definitive abolition of prepublication censorship before 1789, now began encompassing the abolition of ex post facto repression as well. Throughout the nineteenth century, demands for unlimited freedom of expression evolved alongside expanded efforts to police public opinion, leading to strained arguments on the part of nineteenth-century officials who tried to reconcile the two. For example, François Guizot’s pamphlet Quelques idées sur la liberté de la presse, published upon his appointment as General Secretary of the Interior Ministry during the Restoration of 1814, began by extolling the virtues of absolute press freedom. Statements such as “Today we can hazard unlimited freedom without great risk” chimed with liberal aspirations, and indeed, they were intended to win liberals over to the royalist cause. But halfway through the tract, the reader was suddenly thrown back into the world of censorship. The transition is jarring. “However,” Guizot wrote, “since many people seem to fear unlimited press freedom, since I would not dare assert that it could be implemented without some drawbacks (produced more by people’s fear than by the real effects of it) . . . and since the spirit of the nation seems to indicate that circumspection is needed,” prepublication censorship would have to be implemented.22 Thanks to his efforts, it was on October 21, 1814.
Guizot rehearsed the arguments with which we have become familiar in this study. The need to prevent anarchy: “In the midst of the collision of so many diverse interests . . . the government should reasonably want to avoid the appearance of shock and turmoil.” The need for exceptional measures in times of transition: “The state of affairs is entirely different at the time a government is founded: if it undergoes a period of misfortune and trouble, if morality and reason are perverted, if passions abound without restraint . . . license will have to be restrained.”23 Like Thiébault, whose ideas on censorship he shared, Guizot combined conservatism with enlightenment progress. “The aim of [censorship] is to bring the French people to the level on which they can forgo it and enjoy absolute freedom.”24 For Guizot, “absolute freedom” did not mean boundless freedom. Rather, it meant moral and intellectual self-governance, which required the internalization of public spirit and enlightenment. To protect these pursuits from subversion, press freedom, he advised, should be “attempted in a gentle, gradual manner.” Implementing it rashly and without moral safeguards, he warned, would jeopardize “tranquility and trust . . .without which neither good intelligence nor public spirit will flourish in France.”25
Censorship came and went before the Third Republic definitively abolished it with the press law of July 29, 1881.26 The law turned out to be the most stable to date (it is still on the books), but it did not abolish restrictions on free speech or the surveillance of public opinion. Calumnious attacks on public officials and seditious speech continued to be considered crimes. In the twentieth century, the law was amended to include bans on hate speech and apologia for war crimes and crimes against humanity.27 Despite the wide scope of the law’s restrictions, legislators sometimes found them insufficient to deal with what they took to be grave threats. In 1893–1894, for example, they overrode one of the law’s provisions by legalizing the suspension of trial by jury for affairs involving the anarchist press.28 Meanwhile, the state continued its surveillance of public opinion and political movements, as the police records of the Third Republic held in the French National Archives amply show.29
As repression and surveillance persisted, efforts to morally and intellectually engineer society increased. Indeed, it is telling about the relationship between free speech, republican legitimacy, and civic morality that the press law of 1881 was closely followed by the Ferry Laws, which instituted free, universal, secular, and compulsory education. The passage of these two sets of laws reinforces historian François Furet’s thesis that the Revolution of 1789 came to an end only in the early years of the Third Republic.30 The press would now be (moderately) free and censorship definitively abolished, but the Republic would expand its power to shape minds. What revolutionaries had tried to achieve through declarations of free speech and moral regeneration in the 1790s was now being accomplished through stable press laws and compulsory education.
Although public education may seem unrelated to the problem of free expression, we should not underestimate its long-term contribution to fostering conditions favorable to tolerance and to the notion of a loyal opposition, not only in France but in other democratic societies as well. When the liberal mantra “We agree to disagree” is proclaimed today, it is usually the colorful diversity of disagreements that is celebrated; taken for granted are the institutions and practices that have historically established the “we agree to” part of the formula—or even the “we,” as opposed to “us” versus “them.” There is no need to idealize universal education or exaggerate its successes to recognize the fact that, by the end of the twentieth century, an important part of the mission of nineteenth-century education reformers had been accomplished. Citizens by and large accepted the fundamental moral premises of liberal democracy.
It was in the luxurious context of political legitimacy and stability during the latter half of the twentieth century that libertarian views on free speech flourished. No longer viewed as merely a vehicle for achieving some higher aim such as virtue or enlightenment, free speech became an end in itself. From this perspective, any and all limits—moral, legal, and regulatory—appeared suspect. Whereas libertarian arguments in the past had tended to be contingently mobilized by minorities seeking to outflank power, by the end of the twentieth century they became embedded in sophisticated theories and consistent political positions. To be sure, not all embraced libertarian conceptions of free speech. Some argued that absolute tolerance was at best naive (because the “marketplace of ideas” where conflicting opinions are translated into power is itself structured by inclusions and exclusions), at worst dangerous (because indiscriminate tolerance weakens resistance, favoring the forces of oppression).31 Nevertheless, libertarian dispositions gained ground with the rise of the civil rights and youth movements of the 1950s and 1960s and persisted thereafter, though not always without controversy. For example, philosopher, linguist, and political activist Noam Chomsky became renowned for his defense of a Holocaust revisionist in France, Robert Faurisson, who was fired by the University of Lyon II in the early 1980s.32 Chomsky claimed to be following Voltaire’s precept, “I detest what you say, but I will defend to the death your right to say it.” Actually, Voltaire never said this. The quote was invented by a twentieth-century biographer of Voltaire, A. Beatrice Hall. It reflected her convictions more than those of Voltaire, who did not defend to the death adversaries such as the censored and persecuted Rousseau, whom he considered a traitor to the Enlightenment cause.33 Indeed, few eighteenth-century advocates of press freedom would have countenanced Hall’s and Chomsky’s position. For them, tolerance ended where the Enlightenment—and the social, political, and cultural aspirations it encompassed—came under attack.
By the late 1990s, free-speech debate and analysis focused less on heavy-handed state repression than on self-censorship and regulations within civil society aimed at protecting women and minorities from discrimination and hate speech. The situation changed dramatically at the turn of the twenty-first century. Since 2001, freedom of expression has suffered colossal setbacks in many democratic societies, including France and the United States. Surveillance, intimidation, and manipulation of the press are on the rise.34 In France, the police have stepped up searches of the homes and offices of journalists and labor-union officials. In the United States, journalists have been imprisoned for months for failing to reveal sources or to turn over footage, even for stories never published. Journalists (including one Pulitzer Prize–winning photo-journalist) have been imprisoned abroad by the United States without trial.35 More insidiously—and in ways reminiscent of Directorial policies—government propaganda in the United States is being passed off as genuine journalism: fake reporters invited to news conferences to ask flattering questions, professional reporters paid by government agencies to promote their policies, and “video news releases” (VNRs) produced at the behest of state agencies and large corporations and given free of charge to commercial broadcasters, who air them as authentic news reports.36 Worse, journalists have increasingly become the targets of political violence. More than a dozen reporters and critics of the new Russian regime, which declared freedom of expression in 1993, have been murdered since Vladimir Putin’s rise to power, and in the first three years of war in Iraq, more journalists were killed than during twenty years of hostilities in Vietnam.37 Meanwhile, self-censorship, consolidation of commercial media empires, and the fragmentation of public forums have continued apace in many democratic societies, diminishing the political influence of noncorporate civil society.38
Clearly, the twenty-first century has opened inauspiciously for free speech. Yet, if recent trends are to be deplored, it is not clear that those actively engaged in free-speech issues envisage truly unlimited freedom. Pétion’s observation in 1791 still rings true: “Today, everyone agrees that the press must be free, but not everyone attaches the same meaning to this word, freedom.”39 Indeed, the different ways groups prioritize the rights, values, and objectives housed within democracy explain ongoing struggles over legitimate limits on free speech—why some limits are seen as compatible with freedom, even necessary for it to flourish, and others are branded as fetters. Should hate speech, which menaces the individual, or the burning of the flag, which offends patriotic sentiments, be prohibited? Should public schools be free to teach creationism, or should the curriculum be based on secular knowledge? Does the consolidation of commercial media impoverish the public sphere, or are “free” deregulated media markets the best guarantor of a dynamic marketplace of ideas? In debating these issues, each side accuses the other of undermining free speech, even as both sides fold the limits inherent in their respective conceptions of it into other democratic values: individual empowerment, patriotism, religion, secularism, social progress, property, national security, pluralism, the free market.
This study has shown that the values that mattered the most to contemporaries in late eighteenth-century France—honor, religion, and mœurs—shaped struggles over free speech after 1789. But values were not the only factors inflecting those struggles. Circumstances mattered as well. Indeed, I believe that circumstances go far toward explaining the different courses free speech took in the early French and American republics. Both countries, we have seen, believed that press freedom consisted in the abolition of prepublication censorship, and both left the problem of ex post facto accountability for abuses initially unresolved. But the circumstances under which each republic implemented free speech differed immensely. By the time Americans ratified the First Amendment in 1791, they had already rid themselves of their old regime, Britain. Even earlier, when this freedom was written into state constitutions, British rule had already been overturned, and large numbers of loyalists had emigrated. The United States thus benefited from the unifying effect of war and the removal of old forces before tolerance thresholds were put to the test. Events in France unfolded in an inverse manner. Free speech was declared while old and new elites were embattled in an epochal struggle over constitutional foundations. The allegedly pathological obsession of French revolutionaries with unity—the “general will”—reflected the desire, indeed the imperative, to prevent fatal clashes over liberal reforms, especially civil equality, religious freedom, political representation, and the rule of law. Many of these principles were already engrained in American political culture at the time of independence. For the French, they were new.
Another difference in circumstances that helps explain the contrastive outcomes of free speech in France and the United States was the greater degree to which the advent of this freedom in France disrupted customary patterns of honor and deference. Doubtless, Tocqueville exaggerated when, in Democracy in America, he claimed that “the prescriptions of honor [are] less numerous” in democracies than in aristocracies; clearly, honor infused early American politics and provoked numerous violent clashes. The fatal duel between Alexander Hamilton and Aaron Burr serves as an illustrative example.40 Still, the sudden shift in France from hierarchical privilege to civil equality was arguably more vertiginous and unleashed more systemic violence. Had the framers enfranchised slaves and had blacks begun exercising the right to free speech to denounce the injustices of their former tyrants, waves of terror may well have rolled across the early American Republic. Indeed, they did after the Civil War. And as historians of the postbellum South have argued, ritualized racial violence, on the streets and in the courtroom, expressed the anxieties and hatreds of whites who, like many elites during the French Revolution, believed their honor—and hence, their social, economic, and political privileges—to be violated.41 To be sure, the systemic violence of Old Regime social hierarchy was not as intense as that of American slavery (slavery in the French colony of Saint-Domingue excepted). But then, neither does the judicial Terror in France compare, in brutality and duration, to the decades of terror experienced by blacks in the United States after 1865.
A comparative study of free speech in France and the United States awaits its historian. Much could be learned from such a study, especially if it considered how the principle evolved as it moved through the Atlantic world. In the meantime, I hope that the present study will be seen as offering a useful approach. In examining how old cultural habits persisted in the course of democratic change, I have put legitimate limits on free speech at the center of historical analysis. Often viewed today as mutually exclusive, freedom and limits have been inextricably intertwined in the development of modern democracies, albeit in contingent and contested ways. Stressing the historical importance of limits should not, I would insist, be seen as hostile or unsympathetic to the principle of free expression. To the contrary, ignoring the relationship between freedom and limits impoverishes our ability to recognize the limits that have already been internalized or institutionalized and impairs our capacity to reconcile free speech with other democratic values. Though we may look skeptically upon the ideals previously advanced to circumscribe free speech—religious virtue and truth (Milton), reason and enlightenment (Spinoza, Kant), republican virtue and public spirit (Robespierre, Guizot)—we should be wary of disassociating free speech from all other values. Robespierre’s slide from defending unlimited free speech in 1791 to presiding over the Terror in 1794, much like the United States’ slide from espousing the world’s most liberal jurisprudence on free speech at the end of the twentieth century to implementing some of the most sophisticated methods of policing opinion at the beginning of the twenty-first, should give us pause. Rather than rejecting limits out of hand, we would do better to examine their history. Doing so puts us in the empowering and ethical position of accepting, rejecting, or changing them.
Such an approach is what Michel Foucault called for in one of his last essays, titled after Kant’s famous piece, “What Is Enlightenment?” Defending his longtime devotion to the archaeological and genealogical critique of the Enlightenment, he concluded, “I do not know whether it must be said today that the critical task still entails faith in Enlightenment; I continue to think that this task requires work on our limits, that is, a patient labor giving form to our impatience for liberty.”42 Patience, however, is not a disposition that abrupt regime changes, such as revolutions, readily afford.