‘So to Speak’ podcast transcript: Free speech and the American Founding

September 20, 2022

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Tyler MacQueen: Across the street from Fire’s Headquarters in Philadelphia, stands Independence Hall – the birthplace of American democracy. Around the world, the red brick façade defines the city, the country and the principles of self-government. Even today, when dwarfed by modern day skyscrapers, this historic site looms large over the old city. During the American Revolution, it became the center of American political power.

Representatives from all 13 colonies and later states convened here, debated here and governed here. It is rather fitting that Fire’s offices overlook the symbol of democracy because both the American founded. And the larger American story would not have been possible without free speech and free expression.

Gordon Lloyd: The important part of the American story is the right to choose the form of government under which you live. And that is tied up with the assertion to the right to free speech and press.

Tyler: This is Gordon Lloyd, Dockson Emeritus Professor of Public Policy at Pepperdine University and a senior fellow at the Ashbrook Center. Gordon has spent the last 40 years studying the founding era, resulting in over 150 publications and a new website that just launched called americanfounding.org. Gordon, my friend, thank you so much for joining us and welcome to so to speak.

Gordon: This is good. Well done. And I’m looking forward to our conversation.

Tyler: The story of a nation built and sustained by free speech begins during a time where free speech itself wasn’t commonplace. Before the United States was a nation, it was a collection of individual colonies – 13 colonies to be exact – with distinct economies, topographies, climates and religious denominations. Slavery was common. And democratic forms of government were very slowly taking root in the hearts and minds of the people. So different were the colonies from one another that there was very little holding them together except for their status as British subjects and their shared fealty to the British crown.

It was during this time that Virginia’s governor, William Berkeley, summed up the dominating sentiments regarding free speech during the colonial era when he declared, I think God there are no free schools nor printing and I hope we shall not have these for hundreds of years. God keep us from both. Colonial governments were shaped and informed by the English legal tradition. Chief among those inspirations was the Magna Carta of 1215, which forced King John to recognize the traditional rights of the futile lords and barrens.

It is in the Magna Carta that we see the political origins of many of the right we now find in the American Bill of Rights. Among these, are the right to due process, the right to petition and constitutional restraints on political offices. In his 40 years of research, Gordon has discovered that in fact, most of the rights that are now protected in the Bill of Rights do not originate from America’s colonial or English past. That includes the first amendments rights to religious liberty, freedom of press and freedom of speech.

Gordon: How many rights are there in the Bill of Rights? We know there are 10 amendments. But if we start counting them, how many rights are in there? The answer is 26. This is just numerical for the moment. We’re not starting quality or anything – numerical. And six of those 26 occur in the first amendment. One of those six is free speech.

Tyler: There is some debate amongst scholars about just how many rights there are in the first amendment. Some argue that there are five rights listed. Religious freedom, freedom of press, freedom of speech, the right to assemble peacefully and the right to petition. While others argue that there are actually six rights. These scholars separate the right to religious freedom into two separate rights. Protection against the establishment of a national religion and the right to free exercise of one’s religious beliefs.

Gordon: Now, if we look at Magna Carta, we ask how much on the Magna Carta can we find or trace those 26 rights back to? The answer is nine. That is one third. So, quantitatively that looks very good, but then when you look at what – how do you match up the nine that are in the Magna Carta with the 26 that are in the Bill of Rights and the answer is there is no freedom of speech, no freedom of the press, but the vast bulk of them is due process. Right to trial by jury, important yes, but the Magna Carta tradition is the due process tradition.

Tyler: And the Magna Carta was not the only political document from this time that was silent on free speech. The 1628 petition of right declared that the British parliament – not the British people – had a right to petition the king. Later in 1689, the English Bill of Rights institutionalized freedom of speech in the house of commons, but it was not extended to the British people.

Gordon: There is no right to free speech. That’s – or freedom of the press. It’s sort of the right of parliament to assert its authority over or against the king. So, you have kind and parliament. So, from 1628 to – you may say the Magna Carta is the nobles and the king. 1628 is the parliament and the king. Then you get 1688 which is the establishment of William and Mary on the throne, which is where parliament decides in effect, how to say it, who becomes the monarch. 1688 gives the British the right to choose the monarch they want. It doesn’t give them the right to choose the form of government under which they live. That is a very American thing.

Tyler: At the time, free speech was distinctly American concept. Not only that, it was radical. And while folks like Virginia’s governor, William Berkeley pray that free speech and freedom of press would never come to America’s shores, it was slowly beginning to take root in the mid 1600s. You see, in 1641, a puritan minister named Nathaniel Ward drafted and proposed the Massachusetts Body of Liberties. The first ever recorded protection of free speech in the American colonies.

The importance of the Body of Liberties cannot be over stated. Nearly half a century before the 1689 English Bill of Rights, the Massachusetts Body of Liberties shows us today that the origins of America’s free speech tradition does not come from our British political heritage. Instead, it begins as a product of American thought – as a means to foster and develop democratic forms of government at the local level. Here’s Gordon reading language from the Massachusetts Body of Liberties on free speech.

Gordon: Every man with a inhabitant or foreigner, free or not free, shall have liberty to come to any public court, council or town meeting and either by speech or writing, to move any lawful, seasonable and material question or to present any necessary motion, complaint, petition, bill or information where of that meeting have proper cognizance so it be done by, in convenient time, due order and respective manner.

That is the first time that I’ve discovered it. Free speech and press are together there. To publish, right. To publish by pamphlet forum or whatever. So, speech then to pamphlet. And the right to free speech, even of a slave – a free man or not free man – has to be pertinent. It’s not just standing there and mouthing off. It is you’re free to speak because human beings have the capacity of speech.

Tyler: Before members of parliament were allowed to speak freely in the house of commons, colonists on the rocky shore of New England had decided to protect free speech and the free press for all people. This fundamental right would become essential in the tumultuous years ahead. British forces and their indigenous allies emerged victorious over the French and several other native tribes in the French and Indian War. The British victory gave the empire vast new tracks of land beyond the Appalachian Mountains, stretching far into the Ohio Valley. But that new land came at a steep cost. England’s national debt was now more than 122 million pounds.

Over $31 billion in today’s money – an enormous amount for its time. Interest alone on the debt was over 4 million pounds a year. To help pay off the imperial debt, King George III sought out new sources of revenue and attempted to impose new taxes on the colonies. Collectively, these laws were known as the intolerable acts. The intolerable acts were met with increasingly bold resistance from colonists who, as only subjects, thought it unjust to tax without political representation. It was in this politically hostile environment that the importance of a free press and of free speech truly took root.

Gordon: America started responding that this sort of violation of the rights of Englishman. And part of the right of Englishman was to the rule of lord, due process. They felt this was not due process. They weren’t consulted. They were being taxed without representation, which was a British tradition of representation and taxation together. And so, they got together, which is in itself a story, how colonies began to see that they have something in common. And they therefore got together to deal with these common interests, so they spoke about it.

These people were selected. They were elected. This was the birth of representative government at a national level, a continental level. And they got together with the first congress to petition the king for a redress of grievances. They expressed the rights of Englishman. They never expressed natural rights. Never expressed the right that somehow – that they had a right to adopt a formal government, which they wanted to choose. Nothing like that.

Tyler: It was just a petition to the king, to parliament, to change or to address the problems that they had. There was no talk about revolution at this time or at least no serious talk.

Gordon: Yeah, no serious talk. And part of the understanding of the discussion was, if this doesn’t work, what do we do? And the answer is we shall meet again. Today we have instant response to things. You know the elections practice even before they’ve taken place. [Inaudible] [00:12:16] ship six weeks to get across the Atlantic. Well, I wonder what is he thinking, what is gonna happen, what do we do in the meantime? So, the second continental congress meets, and this is the time when the king’s response is, I’ll ignore you. So, now what do we do? Well, there’s some who say, write another petition – oh, by the way, word is coming that a ship, or the ambassadors are coming to discuss reconciliation.

Well, what kinda reconciliation do they want? Well, they want reconciliation by bending your knee. We’re not gonna bend our knee. So, there’s this discussion about, well, who are we then, right? We don’t wanna be subjects. We’ve done petition. What do we do? Well, let’s try peace talks. Let’s try such and such. Meanwhile, bombs are going off. That’s our free speech talk. It’s difficult for people today to see that as the birth of free speech as our right, but it is because elections, choosing, candidates being responsible, going to congress under orders. All of that.

Tyler: Well, not only that, but even within the congress as you were just saying, there are people who are suggesting outright that we just need to declare independence. There are people who are saying that we need to continue peace talks for reconciliation.

Gordon: Right.

Tyler: And there are members who have left the continental congress after the declaration because they did not believe that even then independence was the right course.

Gordon: That is correct.

Tyler: So, there was even free speech, free expression and the free exchange of ideas going on within what’s now Independence Hall.

Gordon: That’s correct. And so, what’s very interesting is as we go through the second continental congress, through this long period of discourse about moving for a petition to revolution, you have the following idea starting to prevail. As we ponder reconciliation, as we ponder revolution or whatever the heck that means or how one justifies it, we, the congress, recommend that colonies take very seriously about creating their own form of government. And this is before the Declaration of Independence.

This is in 1775. And also, they talk about not only should the colonies become states and think about what form of government they’re gonna create, but we gathered here as united colonies should think very seriously about a more prevalent arrangement between us. And so, therefore, the right to choose the form of government under which you shall live becomes a central right. And you cannot choose unless you speak about it and write about.

Tyler: Securing the right to free speech within state constitutions was the next step to its eventual codification in the U.S. Bill of Rights. But for the time being, the founders have other things on their mind. After the passing of the Declaration of Independence, the American Revolution raged on for another seven years. During this time, and immediately following the war, the United States was governed by the Articles of Confederation – a decentralized form of government where there was no president and little power vested into the congress. Under the confederation, states had nearly all the power. Enforcement of any policies at the federal level had to be unanimous. In short, not much got done.

Frustrated by the weak government, delegates from the 13 states convened once again in Philadelphia during the hot summer of 1787 to discuss establishing a new form of government. It was from this constitutional convention that the United States constitution as we know it was born. Under the new constitution, the federal government was to be divided into three branches – the legislative, the executive and the judicial. The constitution also granted a larger share of political power to the federal government to avoid the disasters of the Articles of Confederation. There was, however, one thing missing. Why was there not a bill of rights originally included with the constitution?

Gordon: The reason why they weren’t particularly interested for 88 days over a bill of rights is because they entered with the proposition that a bill of rights is not going to solve the problem of majority faction. You have to change the structure of the government itself. So, the challenges kinda would be democratic and protect rights at the same time.

Tyler: A faction – according to James Madison, is a group of citizens that is united by a common passion who leverages their influences at expense of the rights of other citizens or the interests of the community. During the years between the revolution and the constitutional convention, majority factions became a growing threat across the country. At the state level, these majority factions would override old legislation and institute new laws at the expense of minority groups and opposing political parties.

The founders hoped that the new constitution would better control the effects of majority factions by creating a system of government that relied on checks and balances. Many of the founders, like Madison and Pennsylvania politician, James Wilson, believed that a bill of rights would not be as effective against the tyranny of the majority when compared to the provisions written into the constitution.

Gordon: In 1787, we now have 11 years of state government running. And the state governments seen to presuppose that the real danger to liberty comes from those who are in power. We have now discovered in the last 11 years that there is a new danger to liberty. It comes from majority faction. And what good is a bill of rights, a parchment piece of paper, you’re gonna waive in from of a majority. If you waive this in front of a minority in power, you could always say, look how many there are of us – a majority. But if you have a majority in power, and you have a bill of rights, you’re gonna say, look how many there are of us. Our experience indicates that democratic governments are not automatically decent.

So, how could we democratic and decent? And a bill of rights, per se, is not going to make a democracy decent. You have structure the government in such a way – so, James Wilson leads the defense of the constitution by actually responding to early anti-federalist critique. There’s an absence of a bill of rights. And James Wilson says, we don’t need a bill of rights. One, the federal government is limited, therefore we don’t need it. Secondly, the state governments, which is where most of the action is gonna take place, state governments have a bill of rights. And a federal government is limited in its authority. So, therefore, we don’t need a bill of rights. Besides, the bill of rights is a tradition – it’s a British tradition. We’re Americans now. The constitution is a bill of rights.

Tyler: The United States Constitution was signed in Philadelphia on September 17th, 1787. There was no shortage of free expression within those halls. No widespread punishment of even the most ludicrous of ideas. In fact, John Adams would later go on to describe the convention as the single greatest effort of national deliberation the world has ever seen. After the constitution signing, our new governing charter was sent to the states for final ratification.

What resulted was a fierce public debate over the merits and downfalls of the new constitution. Public forums were held from Boston to Savannah. Editorials and anonymous essays were printed and distributed. Men and women, black and white citizens, debated fiercely indoors and in the public arena proving that free speech and free expression were essential to the development and growth of the young republic. As Gordon himself told me…

Gordon: What the ratification did was unleash the greatest pamphlet war the world had ever seen.

Tyler: There were two dominating factions in the great debate over ratification. The federalists who supported the constitution consisted of renounced figures such as Alexander Hamilton, James Madison and John J. In opposition to the constitution were the anti-federalists whose ranks included Roger Sherman, Richard Henry Lee and Patrick Henry. It was the anti-federalists who argued for the necessity of a bill of rights in the new U.S. Constitution.

Gordon: There’s something about power, which is an aphrodisiac. And it doesn’t matter that we are electing our brothers, our sisters, our uncles, our aunts. Power corrupts and absolute power corrupts absolutely. And that becomes really the division between the anti- federalists who oppose the constitution and people like Madison, who were defending it. So, right from the very beginning, you got Brutus essays, you got Kato essays, you got the Pennsylvania Minority Report. They lead with the absence of a bill of rights.

Tyler: But it was Thomas Jefferson, not the anti-federalists, that proved to the most effective advocate for a bill of rights.

Gordon: Jefferson is in France in 1787, 1788, and Madison send him a long letter explaining what the constitution has done and what it’s like. Madison is very proud. He finally got the constitution through. Now it has to be ratified. And Jefferson writes back to thou like it, but here I’m gonna tell you what I don’t like.

Thomas Jefferson: Paris. December 20th, 1787. I will now tell you what I do not like. First, the omission of a bill of rights providing clearly and without the aid of sophism for freedom of religion, freedom of the press, protection against the standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and by trials by jury. In all manners of fact, triable by the laws of the land and not by the laws of the nation.

Gordon: Included in what we could call Jefferson’s essential bill of rights on December the 20th, 1787, speech is not mentioned. So, does that mean the free men weren’t interested in speech? There are many ways to look at this but if we were to say the coin and the rim of the coin is conscience. One side is freedom of speech, the other one is freedom of press. And it usually falls freedom of press. That’s not to say that freedom of speech – you just don’t see it. But it’s there. It’s part of the coin. And when you flip it the next time you never know. Coin may just stay there, and you get both of them. But I think that part is very very important. So, that’s what – but notice, Jefferson lists six.

About half of them are due process, Magna Carta British tradition. The first three which he mentions are very American. Freedom of religion – in fact, perhaps he preferred to say freedom of conscience – that Jefferson’s freedom of religion, right. Freedom of religion, freedom of the press and protection against standing armies. Those are three American things. And so, one could say if you’re ornery that he doesn’t say speech, therefore he’s not interested in it. No, but speech is there. He’s writing to Madison. He’s speaking confidentially to Madison. He says, let me tell you. What is telling mean? It is also linked to speech when I tell you something.

Tyler: By the summer of 1788, nine states had ratified the new U.S> Constitution. Upon hearing this, Jefferson wrote Madison once again, urging him and his fellow federalists to consider his proposal.

Thomas Jefferson: Paris. July 31st, 1788. I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from north to south, which calls for a bill of rights. The few cases wherein these things may do evil cannot be weighed against the multitude wherein the want of them will do evil.

Tyler: Madison’s response.

James Madison: New York. October 17th, 1788. My own opinion has always been in favor of a bill or rights provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time, I have never thought the omission a material defect nor been anxious to supply it even by subsequent amendment for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use. And if properly executed, could not be of disservice. I have not viewed in it an important light because experience proves the inefficiency of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every state.

Tyler: And back to Jefferson.

Thomas Jefferson: Paris. March 15th, 1789. Your thoughts on the subject of the declaration of rights in the letter of October the 17th, I have weighed with great satisfaction. I’m happy to find that on the whole, you are a friend to this amendment. The declaration of rights is, like all other human blessings, alloyed with some inconveniences and not accomplishing fully it’s object. But the good of this instance vastly outweighs the evil.

Tyler: Jefferson’s letters persuaded Madison. Upon the election of the first congress of the United States in 1788, Madison, now a representative from the commonwealth of Virginia, rose to the floor and introduced his proposed version of the bill of rights.

James Madison: The amendments which have occurred to me proper to be recommended by congress to the state legislatures are these. The people shall not be deprived or abridged of their right to speak, to write or to publish their sentiments. And the freedom of the press as one of the great bulwarks of liberty shall be inviolable.

Gordon: Madison has to try to persuade the first congress, in which there are very few anti-federalists, a bill of rights is necessary. And they’re mumbling, oh, we have to get on doing the bank. We have to create the judiciary. And Madison says, the founding is not complete. Without an expression, without speaking about and writing about a bill of rights. And fascinate, what Madison does is he takes the constitution – all right. So, he says, let’s open it up. Let’s open up the constitution. And so, he starts, and he starts putting out – what do you call – 39 alterations. So, he starts working his way through the constitution and he gets to Article 1 Section 9, which is – Article 1 Section 8 gives the powers of congress.

Article 1 Section 9 give the limitations on congress. So, he says, let’s open up Article 1 Section 9 and this is where he says, let’s add congress – this is why it starts. Congress shall not abridge freedom of conscience, et cetera. So, that’s where he wants to put it. And he goes on and this is his proposal and it gets looked at by – in the congress. And Roger Sherman says, we shouldn’t do this. This is not right. The work of the founders should remain pure. And Madison said, but I am the founder. So, some court reporter, some astounding report, takes Madison’s proposals, which he has deliberately inserted into the constitution at relevant points, including conscience, right.

And takes them all out and writes it down as first amendment, second amendment, third amendment, fourth amendment to be added at the end and comes up with 17 amendments. Goes to the senate. They do their job and send it back to the house. Now it becomes 12 amendments. And the first amendment and the second amendment are actually, in the end, rejected by the state conventions. And so, what leaves the house and senate as the third amendment becomes actually the first amendment as a result of the right to speak, the right to press, the right to conversation and a right to discourse.

Tyler: The 12 amendments approved by congress were sent to the states for final ratification in September of 1789. It wasn’t until over two years later in December of 1791 that the journey which began 150 years earlier with the Massachusetts body of liberties ended with the adoption of these words. Congress shall make no law of 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 peaceable to assemble and to petition the government for a redress of grievances. How do you think the founding chose us as Americans today looking back, that free speech makes free people?

Gordon: I think you could see that in the movement from petition, to independence, to declaration, to creating state governments, to reflecting whether state governments are done well enough over 11 years, reflecting on whether the Articles of Confederation have done well enough, by having remonstrances, by having discussions, by having meetings. We don’t have to wait for the king. We can become citizens. We are no longer subjects. Subjects petition. Citizens debate, discuss, elect. But free people are people who don’t curtsy about.

A free people write into the constitution, there shall be no titles of nobility. Free people have frequent elections, come rain, come storm, come wind, come war. There’s no provision in the constitution for the abandonment of elections every two years in congress. That’s what a free people can expect from the constitution. And that constitution is created by and sustained by freedom of speech, as I would say, embodied within a teaching of what it means to have republican government.

Tyler: I can’t get the picture that Gordon painted out of my mind. That the founders understood free speech as a two-sided coin. On one side, you have the freedom of press to write and publish your thoughts. On the other side, you have the freedom of speech. To give voice to your thoughts. To bring your questions of what is right and what is wrong into the larger civic conversation. And the thing that connects those two together is conscience – the right to think freely. Without conscience, we would have nothing to write or speak about.

Thomas Jefferson once declared that the human mind is created free. The right to a free mind makes possible the right to press and speech in a civil society. As we discovered during this conversation, free speech aided the American fight for independence and the construction of our government. Free speech and the free exchange of ideas has forced us to confront our political sins, seek out remedies to them and build a more perfect union along the way. Our country’s founding reminds us that the story of American is the story of one people with many voices.