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The philosophic and the Socratic and the democratic all seem to connect here in their common opposition to hierarchy and to shame. And yet, as the myth told by the character Protagoras in a Platonic dialogue of the same name and to be discussed in detail in Chapters 3 and 8 suggests, the polis or the political community can only come into being after humans receive courtesy of Zeus in Protagoras myth the gift of shame, aidos in the Greek, a word that includes reverence and the perception of the self as others see one. The tension in our democratic lives as independent, autonomous creatures is the resistance to the limits that this aidos may cast over us and yet the need that any community has for it.

The balance is delicate and while Thersites welts have no place in the modern democratic world, Thrasymachus blush might. This volume explores the signicance and implications of understanding democracy as the venue for the freedom of speech, the opening of public speech to all, and specically the rejection of shame or aidos as a limit on what one says.

Little excuse is necessary to pursue issues of free speech today. It has become a focal point for many contemporary controversies whether they be debates about political correctness and Stanley Fishs claim that theres no such thing as free speech; or discussions of deliberative democracy where ideal speech situations require that all participants speak openly; or arguments from feminist theorists about the need to limit speech demeaning to women; or concerns about the misuse of the internet as inhibiting or, on the contrary, opening up the opportunities for meaningful debate.

Mostly, when the topic of free speech arises today in America, attention turns to the First Amendment and, given the protections afrmed there, the grounds on which one can or cannot limit speech in the contemporary world. Or, more recently, the Fourteenth Amendment and questions of equal protection come into play when free speech debates surface. I aim to take the concept of free speech away from the intellectual and political framework in which the debates about free speech are currently nestled, though in.

Chapters 1 and 2 I try to connect those debates to our understanding of democratic principles. I discuss free speech instead as it appears in the practice and writings of the ancient Athenians freed from the liberal language of rights and protections that dominates and, I believe, inhibits contemporary discussions. I present free speech as grounded in the democratic environment of self-rule that developed in the Athens especially of the fth and fourth centuries bce and explore its place in the theoretical foundations of democracy.

The issue of freedom of speech in ancient Athens has often, indeed mostly, been raised in the context of the trial of Socrates who was accused of corrupting the young and introducing new gods into the city. Stones popular book The Trial of Socrates emerged from the great bewilderment Stone that notable defender of the freedom of speech felt at Athens supposed betrayal of its principles with the execution of Socrates. For Stone, who correctly equated free speech with democratic practice in Athens, it was Socrates unremitting attacks on the recently reinstituted and insecure democracy that accounted for his execution.

Nevertheless, Stone still could not forgive the Athenians for their violation of his beloved principle of free speech, which was so integral to his own understanding of democracy. In what follows I go beyond Stones focus on the trial of Socrates to propose that the issue at hand in Socrates trial in bce was not Socrates hostility to Athenian democracy, but rather the incapacity of any regime even, or especially, one devoted to openness of speech in the practice of selfrule and equality for those allowed to participate in that self-rule to ignore the needs of shame, that which restrains behavior not simply through laws or the threat of punishment, but by the sensitivity to the judgmental gaze of others and to the historical and social setting in which one lives.

We can perhaps describe as I try to do in Chapter 2 the emergence of the earliest democratic society as an act of historical amnesia. Cleisthenes, the so-called founder of Athenian democracy, liberated Athens from the patriarchal tribes that had dominated Athenian political history previously and replaced them with new units apparently created simply by administrative at. Shame, as respect for modes of behavior derived from and dependent on the past, on decisions that others 7 8. Since I began this project there has been a urry of activity by historians of ancient Greece on this topic.

See most especially, Rosen and Sluiter Different moments in Athenian history surface in different interpretations of that history as the founding moment of Athenian democracy. See Chapter 2, pages for a discussion of why I focus on Cleisthenes. The Athenian practice of free speech parrh sia, the saying of all by the e unbridled tongue becomes a hallmark of the democratic regime, to such an extent that Parrh sia becomes the name of one of the ships built with e public funds.

As I point out in Chapter 4, the term parrh sia ows through e the defenses of democracy in the fth and fourth centuries and appears often in the Platonic dialogues as Socrates eggs his interlocutors on to practice parrh sia, to speak freely without shame since they are conversing in e the democratic city of Athens. Free speech in both politics and philosophical inquiry is bound up with the rejection of shame, with an independence from a limiting past.

The execution of Socrates was not an expression of the excesses of democracy, but a violation of Athens basic democratic principles. Athens, when it executed Socrates, acknowledged the citys dependence on aidos and was eager to preserve its traditions, to resist the exposure of their inadequacies that Socratic parrh sia was ready to uncover. Socrates, in e contrast, uninhibited by respect for the past and free from limits imposed by the judgmental gaze of others, was the truly democratic man.

The rejection of shame, though, as Protagoras makes clear in his myth, also creates a certain groundlessness and loss of foundations that exposes a society to a profound instability. Shame and free speech represent opposing points in the political order that play off one another in the construction of a stable democratic polity.

The authors and experiences of ancient Athens enable us to explore the nature and implications of this opposition for democratic regimes.

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Contained within the analysis below of free speech and shame in a democracy is the place of philosophy in a democratic society. Through a study of selected Platonic dialogues primarily the Apology of Socrates and the Protagoras , I contend that Plato illustrates the compatibility between philosophy and democracy in the common rejection of shame.

Thus, contrary to the familiar readings of a Platonic hostility to democracy, I nd a Plato sympathetic to a democratic Socrates struggling against the socially controlling power of a hierarchically based shame. Certainly there are numerous places in the Platonic dialogues that suggest hostility to the rule of the people. Book 6 of the Republic with its parables of the boat, of the wild beast and the corruption of the philosophic soul is just one notorious example.

Yet, Socrates does adopt the principle of parrh sia as the guide for his philosophic engagement. For other ways e in which I believe the antidemocratic Plato is too harshly embedded in our consciousness, see Saxonhouse chap. Free speech may lead to the egalitarianism denied poor Thersites, it may be at the foundation of the deliberations on which self-rule is based, and it may be the condition for the investigations by a Socratic philosopher, but it also has its limits.

Aristophanes, Euripides, Thucydides, and Platos Protagoras all offer poignant reservations about the unbridled tongue as they uncover the dangers of free speech and the challenges it poses to the very ideal of self-rule. I recognize that by using the language of freedom of speech as a translation of parrh sia I am wading into a deep pond or really an ocean e of controversy about speech within the political community, whether any assertion of such freedom is merely a gment of the imagination, whether speech may really serve to oppress rather than liberate, and even what constitutes speech, whether it is words spoken or any form of communicative behavior.

By removing the discussion of freedom of speech from the controversies of political correctness, pornography, the internet, and the like that inhabit the contemporary world and by setting it within the realm of the Athenian political experience, we do not discover answers to the troubling question of where precisely we ought to set limits on freedom of speech, but we come to understand better its place in the foundational principles of democratic regimes and the practice of philosophic inquiry.

Perhaps we generate greater problems by pointing to the instability of regimes founded on freedom of speech and democratic principles unmoderated by the inhibitions of shame, but my goal here is not to provide certain answers. It is rather to open alternative ways of thinking about the issues raised by free speech when we set ourselves loose from the language of individual rights. The story of free speech and shame, as I see it, is the story of the possibilities and limits of democracy. Athens as the rst democratic regime and the writings of its self-reective authors let us explore this story.

The rst half of what follows illustrates the potential that the Greeks saw in the liberation of speech; the 10 I return to this point in Chapter 8, pages The essays in Bollinger and Stone 22 provide a series of discussions of such issues. Williams is also well aware of the dangers of romanticizing the past. I intend to do neither, but rather assert the claim that the ancients can help us think through our contemporary issues and dilemmas. This book is an effort to justify such an assertion.

In striking contrast to the popular view of the historians of his time and earlier centuries, democratic Athens shines forth in his work as a wondrous regime of freedom and creativity rather than as a warning about the chaos and tyranny of mob rule. After recording several paragraphs of Pericles Funeral Oration as presented in Thucydides history, Grote reects wistfully: nor can we dissemble the fact that none of the governments of modern times.

If only the governments of modern times could recapture those practices of freedom of which Pericles spoke, Grote seems to muse here, then the modern world might again be able to produce the monuments of culture that emerged from the freedoms of ancient Athens. If one sought to dene the benets of liberty in the nineteenth century, Athens could serve as a potent model.

On the other side of the Atlantic in the early decades of the twentieth century, Justice Louis Brandeis writes his concurrence in the landmark Supreme Court case of Whitney v. California , a case that is considered by 1 2. On the tradition of using Pericles Funeral Oration in modern times as the inspiration for the defense of liberty see Turner Translated and reprinted in Constant [] Brandeis here urges his readers to recall [t]hose who won our independence. These were men who believed that the nal end of the state was to make men free to develop their faculties.

They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile. They nd echoes in his language to the world of ancient Athens, most particularly to the same Funeral Oration by Pericles that had so inspired Grote a century earlier.

Specically, Brandeis uses a phrase from that oration to describe those who won our independence: They believed liberty to be the secret of happiness and courage to be the secret of liberty Though Jefferson may receive the footnote in Brandeiss opinion, the legacy of ancient Athenian democracy resonates in this powerful paean to benets of freedom of speech.

Brandeis may indeed have had, to use Robert Covers language, a somewhat romantic view of Athens , but he brought that romantic view to his judicial writings on freedom of speech. Brandeiss perspective on Athens most likely came to him courtesy of Alfred Zimmerns The Greek Commonwealth [] , a work he quoted throughout his life and made certain that all members of his extended family read Strum In that volume, Zimmern writes: To say everything parrh sia was one of his [an Athenians] rights, and he exercised it e in a large and liberal spirit, which our public men and even our Press cannot hope to rival [] Whitney v.

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California U. The case concerned Charlotte Whitney who had been convicted of assisting in organizing the Communist Labor Party of California, which was formed to teach criminals syndicalism. Brandeis quotes a passage, cited by Charles A. Beard in The Nation of , in which Jefferson had written: We have nothing to fear from the demoralizing reasons of some, if others are left free to demonstrate their errors, and then adds his own quote from Jeffersons rst Inaugural Address: If there be any among us who would wish to dissolve this union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it n One of the epigraphs for Chapter 8 in Zimmerns book, the chapter titled The Ideal of Citizenship, and subtitled Happiness, or the Rule of Love, is to eudaimon to eleutheron, to de eleutheron to eupsuchon krinantes and is attributed to Pericles.

It comes from Thucydides 2.

The translation of the Greek here is sufciently close to the phrase in Brandeiss opinion in Whitney v. California, which suggests that Brandeis may well have gotten it from here. Strum cites Brandeiss law clerk and friend, Paul Freund, as identifying the Periclean origins of this passage from Whitney The allure of tying Athenian democracy to favored contemporary practices and ideologies has a distinguished history that goes back at least two centuries. After all, even though Brandeis might refer us to Thomas Jefferson in his footnote and echo Pericles Funeral Oration in his opinion in Whitney v.

California, Jefferson himself seemed more interested in the pronunciation and structure of the Greek language and the style of their poetry than in the political and moral lessons one might gain from reading the texts of the ancient Athenians or learn from their history. The introduction of this principle of representative democracy has rendered useless almost everything written before on the structure of government; and in great measure, relieves our regret, if the political writings of Aristotle, or of any other ancient, have been lost, or are unfaithfully rendered or explained to us.

Blasi , working off of Strums biography, offers an extensive discussion of the Funeral Oration and its possible meaning for Brandeis. Brandeis also writes in Whitney v. California [T]he greatest menace to freedom is an inert people. For the checkered history of Athenian democracy in the eyes of assorted interpreters and in the language of political oratory through the ages see especially the following: Turner chap.

A practice that Josiah Ober would call relying on the moral authority of the past a. See for example the letters to John Waldo [Aug. Moore [Sept. With regard to lessons in political organization, he recommends Montesquieu or summaries of his work frequently e. Letter to Isaac Tiffany, , cited by Reinhold I want to use Athens experiences with the practice of free speech to reect on the interconnections between that practice and both democracy and philosophy. These are interconnections I believe to be obscured by a romantic return to the ancient world. The Athenians eulogized free speech as a practice that allowed them to express an egalitarianism that rejected hierarchy and the restraints of a reverence for superiors or for the past.

To say all, to speak freely was to uncover and thus to question what has been and to ignore the restraints of status. Socrates is the great advocate of free speech irreverent in his questioning of others and their ingrained beliefs. Thus, Athenian democracy becomes a regime that fosters but also ends up executing the man who fully expresses the principles of parrh sia. The effort here is to exhibit the range of ways of thinking about the practice of free speech that have surfaced over time.

By presenting this brief overview, I hope to illuminate how the discourse from Machiavelli forward concerning freedom of speech differs from what we shall encounter in the return to the world of ancient Athens. I certainly do not offer an adequate overview of the topic in todays world. Others are far more able than I to do this,10 but I hope that the array of contexts for discussions of free speech will serve as warning about the too easy transfer of language from one historical period to another and help to clarify the different setting and goals of the parrh sia that the e Athenians so treasured and considered their own.

In the second chapter of this Introduction, I explain the distinctive understanding of democracy and democratic theory that runs through this book. There are many denitions of democracy and the institutionalization of democracy encompasses a wide variety of particular and often peculiar institutions. In my treatment of democracy here I simply try to distill one aspect that I believe is critical to the understanding of democratic practices, which the experience of ancient Athens helps us appreciate.

This is the freedom that allows us to break away from the restraints of deference to history, to hierarchy, to shame. This allows one to uncover oneself, to speak First Amendment jurisprudence is a major industry in law journals and books and the challenges of working through the labyrinth of issues raised by the judicial applications of principles inherent in notions of freedom of speech appear almost daily in the nations newspapers.

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The literature on this topic is so extensive that no summary can even begin to do justice to the range of issues the practice has raised. In this discussion, I refer only to some of the works that have been especially helpful in my efforts to learn about this topic. Schauer provides a valuable summary of the topic unto the time of publication, but there had been much written in the last twenty-ve years.

I thank especially Christopher Eisgruber for guidance here. To refer back to one of the stories offered previously, this is an understanding of democracy that focuses on what allows Thersites to toss aside reverence and shame and to tell Agamemnon all that he thinks about Agamemnons leadership without the fear of Odysseus rod. It is only when this reverence is dismissed, when a people can say freely what they think that they are able to practice a politics of self-rule.

It is not so much that Thersites says what is true, but that he can disregard the status differences between himself and an Agamemnon or Odysseus. The denition of democracy emphasizing this release from the chains of the past emerges from the discussion in Chapter 2. It highlights just this one aspect of democracy in order to distinguish democracy from a liberalism and libertarianism that focus on the protection of rights from governmental interference and then from a constitutionalism that relies on the past to limit the present. In this distilling of democratic principles much is omitted from the institutions that characterize our contemporary democracies most especially the language of constitutionalism and liberal rights.

And, indeed, ancient Athens was hardly a pure expression of the democratic principles that I see captured by their language of free speech, however much the Athenians may have identied with their regime with parrh sia. Yet, I believe that e by going back to these underlying principles highlighted by the Athenian experience, we sense the challenges we face when we try to incorporate them into any working democratic regime that encompass multiple and often contradictory principles. Today the challenges of practicing and protecting freedom of speech seldom fade from the headlines of our newspapers or the controversies in our courts.

This was not always the case. Constitution freedom of speech takes pride of place as part of the First Amendment, its inclusion at that point is the result more of chance than of its perceived importance when the amendments were adopted. Over time the interest in free speech has varied greatly as have the justicatory arguments about its place in political regimes. On occasion, Athens and its democratic regime surface as part of a justicatory argument as writers connect free speech with the Athenian experience of self-rule.

The more contemporary recourse to the language of freedom of speech underscores for the most part, however, the differences in the ways in which this practice becomes part of the life of a regime. The brief story of the inclusion of freedom of speech among the rst protections in the Bill of Rights will serve as preface to a synopsis of some of the many ways that 1. In the contemporary world of free speech debates, the argument is frequently made that free speech jurisprudence in America dates only to the early decades of the twentieth century with Holmes opinion in Schenck v.

United States and Abrams v. United States and with the inuential writings of the Harvard law professor Zechariah Chafee ; also Though the adequacy of this claim has been subject to much debate it arises, it seems, because it is only after Schenck v. United States and Holmes dissent in Abrams v. United States that the jurisprudential literature about free speech engages seriously in identifying justications that go beyond the libertarian worry about governmental oppression and the so-called fortress model of freedom of speech, to be discussed below.

See especially Rabban for an exhaustive discussion of nineteenth-century cases dealing with freedom of speech and Rabban for a careful and persuasive critique of the argument by Levy that the Americans had not moved much beyond English common law in the eighteenth century. The controversy swirls around the question of whether the protection of seditious libel is an issue that separates the government from the people and how the peoples role of checking the government ts in with the judicial decisions of the nineteenth century.

Congress in , Representative James Madison, one of the architects of the Constitution, acknowledged that documents inadequacies. Sensitive to the challenges that had been raised by the anti-Federalists during the debates over ratication as well as to the letters appended to a number of the documents of ratication asking for greater assurances of protection against the newly formed government, Madison urged the House to address the question of the amendments at once: [T]he great mass of the people who opposed it [ratication of the Constitution], disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power June 8, Annals of Congress 1.

When Madison offered his own list of amendments and changes to the now ratied Constitution in order to address this problem, among the protections he recommended in his fourth article was the following: 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 1. He explained this proposal by noting that the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act 1.

This is about as much as we hear concerning the whys of freedom of speech during the debates about the adoption of the Bill of Rights. Since most state constitutions had provided such protections for the individual already, the debate in Congress at rst was over whether such liberties needed to be afrmed at the federal level by so quickly amending the new Constitution or whether Congress had more important things on its agenda than tending to what may have been redundant concerns.

In the debates surrounding the adoption of what has come to be known as the Bill of Rights, freedom of speech does not emerge as a central issue. Congress nally approved twelve amendments that were to be submitted to the states for their approval before becoming part of the Constitution; only ten of those twelve received the requisite support for adoption.

The rst one of those sent to the states went into greater detail about adjusting the number of 2. Both of these proposals met with defeat. Though discussions of why a nation should so care about freedom of speech as to include protections for it in its constitution do not surface in the congressional debates,4 we can note, if we consider the early versions of the proposals to protect freedom of speech, that they all are framed largely in terms of the protections such a provision would offer a free people from excessive governmental intervention into the lives of its citizens.

Thus, Madisons proposed amendments of June 8, had included the freedom of speech in his lengthy Fourthly. There he writes of equal rights of conscience, and the right to speak, to write, or publish sentiments, and proposes that the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable Annals of Congress 1. He adds to this list in the same Fourthly the right to bear arms, the right to resist military service, protection from the quartering of soldiers, protection against double jeopardy, protection against self-incrimination, and so forth.

For Madison, the freedom of speech is just one of many bulwarks against oppression some of which are natural rights, others of which e. After considerable debate over whether the House itself should consider the issue of these amendments to the Constitution or delegate the task of writing them to a select committee, the House voted on July 21, to appoint a committee to draft the amendments Annals 1.

Subsequently, the House constituting itself as a Committee of the Whole began consideration of the Select Committees report on August 13, and continued its discussions through August 24, when seventeen proposed amendments went from the House to the Senate Annals 1. We nd from the record of the discussion that the Select Committee had used language in its Article 1, Section 9 that was similar to Madisons original proposal: The freedom of speech, and of the press, and the right of the people peaceably to assemble and to consult for their common good, and to apply to the government for redress of grievances, shall not be infringed Annals 1.

Again, though, this passage appears amidst a potpourri of other protections. Freedom of speech is just one among many. See further Amar chap. There is no record of the discussion in the Senate, which met in closed session during this period. The considerably slimmed down version of the amendments passed by the House on August 24, has as Article the Third freedom of religion and Article the Fourth ensuring freedom of speech, the press, and assembly for the common good.

The separation of the Third and Fourth Articles here may underscore somewhat different concerns. The Fourth Article addresses the citizens role as protectors of the public welfare. The Third Article ensures protection of the individual liberty of conscience. By September and in the even slimmer version proposed by the Senate, the Houses Third and Fourth Articles are made one, freedom of religion joins freedom of speech, and the language of consultation for the common good disappears Annals 1.

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The protective rather than the participatory concerns survived the pruning process. This model for understanding freedom of speech as protection against governmental oppression has its roots in a much earlier English tradition, a tradition that ultimately develops into the language of government by consent. Sir Edward Cokes Institutes of the Laws of England offers the English phrase freedom of speech for the rst time. It seems to mean here the privilege of free debate belonging to members in parliament6 and it retains this meaning in the English Bill of Rights of as well, but extends that freedom beyond Parliament: [T]he freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

Yet, the tradition in England established early on that this freedom did not mean license and precautions needed to be taken that is, publications needed to be licensed lest speech have what was referred to later in Blackstones Commentaries of the late-eighteenth century as a pernicious tendency, and thus be harmful to the common welfare even if the speech itself were true. Cogan records the various documents that chronicle the changing form of the amendment; according to his documentary records, for the common good disappears from the amendment during the Senate discussions on September 9, when the Senate combines freedom of religion with freedom of speech, the press, assembly, and petition into Article the Third.

According to Stoner 48 at the beginning of each session of Parliament, the Commons would petition the king for the privilege of free speech during the session and he would grant it. We nd a recollection of this British practice in Article 1, Section 6 of the U. Constitution where the members of Congress are assured: for any speech or debate in either House, they shall not be questioned in any other place.

The discussion in this paragraph draws on Kersch It was this practice of governmental licensing or prior restraint that was the immediate impetus for one of the great documents associated with the practice of freedom of expression, Miltons Areopagitica: A Speech for the Liberty of Unlicencd Printing written in the middle of the seventeenth century In this work protesting the licensing of books and the restraints thereby placed on free expression in published works, we nd the worry about the impact of governmental restraint. Milton embeds this argument in a series of allusions to the world of ancient Athens.

The very title of the piece derives from the Areopagitica delivered by the fourth-century orator Isocrates to the Athenians and ties Milton to the values expressed by the ancient Athenian. Though Miltons explicit concern is the censorship of works in print, the allusion to Isocrates draws on images of Athens in order to connect freedom of speech to human virtue and political freedom.

Free Athens, as Milton develops it in the rest of the piece, becomes the model for free speech.

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Isocrates Areopagitica had invoked the virtues of the older generation of Athenians, virtues that were supposedly embodied in the judges who sat on the Areopagus in the early-fth century, virtues that Isocrates found so sorely lacking among the Athenians of his own time. Both Miltons essay and Isocrates oration ask for a return to these ancient virtues. In making this appeal, however, Isocrates focuses on an equality of merit that he claims characterized the Athenian democracy of Solons and Cleisthenes time, not on a freedom to speak.

In fact, parrh sia appears only once in the e speech 20 and then pejoratively as the opposite of isonomia, equality in the law. Milton, in contrast, makes his plea for freedom of expression by afrming that the sought-after virtues only ourish when there is the opportunity to express contradictory even if incorrect views and with the intellectual stimulation allowed by the freedom to offer in print ones own speculations. Milton sees the connection between free speech and virtue, Isocrates between virtue and equality of merit without any expression of Miltons worry about government oppression.

To the title that recalls Isocrates appeal to an ancient virtue, Milton adds as an epigraph a passage from Euripides Suppliant Women that may in fact be more appropriate to the theme of freedom of expression to which Milton appeals. Britain, 8. Both Pangle and Canavan emphasize this aspect of Miltons speech as a way of afrming Miltons interest not so much in the freedom of expression but in the freedom to search for the truth as the exercise of reason.

See also Pangle and Pangle Milton suggests, should not appear inferior to Athens in its devotion to liberty and he includes in his speech numerous allusions to Athens and to the authors from Athens who enjoyed freedom of speech. Milton even defends the ancient devotion to freedom of speech to such a degree that he explains away the censorship Plato seems to advocate in his political writings; Plato only included provisions for censorship, Milton tells us, because Plato knew that the regime he was proposing would be impossible to found [] Milton seeks no Platonic utopia for Britain, nor does he imagine a commonwealth free of complaints, but remarks that when complaints are freely heard, deeply considerd, and speedily reformd, then is the utmost bound of civil liberty attaind, that wise men looke for [] 4.

Miltons arguments against the practice of licensing go in many directions from the ad absurdum argument that such restraints could carry over to restraints on all recreations and pastimes, all that is delightfull to man 22 to the general inefcacy of such a policy to the view that such licensing will keep men perpetual children, unable to reason, unable to make their own choices. Yet the bundle of arguments he offers his readers all conform to a consistent theme in the modern world, that of freedom of speech as a tool to restrain governmental oppression of Parliament or the people.

Two centuries later when William Blackstone compiles his Commentaries on the Laws of England, he appeals to the same vision: The liberty of the press is indeed essential to the nature of a free state. He, like Milton, sees this liberty as consisting in laying no previous restraints upon publications and insists that [e]very freeman has an undoubted right to say what sentiments he pleases before the public.

And again, like Milton, he nevertheless does not see this freedom as a right to avoid punishment for publishing what is improper, mischievous or illegal or any dangerous or offensive writings, which many judged to be of a pernicious tendency [ Book 4, Chapter The argument of Milton, of Blackstone, and of others who turned to the freedom of speech as a tool of liberty is cogently and succinctly captured in the February 4, Letter 15 included in the vastly popular writings of John Trenchard and Thomas Gordon and compiled as Catos Letters: That Men ought to speak well of their Governors, is true, while their Governors deserve to be well spoken of; but to do publick Mischief, without hearing of it, is only the prerogative and felicity of tyranny: A free people will be shewing that they are so, by their freedom of speech.

Freedom of speech is the great bulwark of liberty; they prosper and die together. Though scholars may debate whether Trenchard and Gordon writing under the pseudonym of Cato, a hero of the Roman Republic, expressed a republican synthesis, there is little debate about the popularity of these. These letters were not only widely circulated in England; the ideas and even the language resonated in the literature of eighteenth-century colonial America. Locke had argued that government is simply the agent of the people, created by the people to protect their individual rights and entrusted by them with the power to ensure their safety and welfare through impartial adjudication.

The eternal threat of resistance ensures for Locke that the government will not assume a role independent of the welfare of the people who have contracted together to create it. In this model, freedom of speech belongs to the people as a necessary tool for them to check the actions of those in power. The libertarian view, the fortress, the bulwark, the checking models that we nd in the formulation and many analyses of the First Amendment, in the English tradition of Coke and Blackstone, in Catos Letters, and in some sections of Miltons Areopagitica emphasize this Lockean orientation with its separation and distinction 9.

On Catos inuence on freedom of speech in America see, for example, Curtis ; for the scholarly debates concerning the nature of Catos inuence at the time of the American founding see especially Zuckert Blasi in his review of Bollinger and elsewhere ; uses similar language. Owen Fisss slender book on free speech recognizes the view that the state is often seen as the natural enemy of freedom and that freedom may need protections from government, but he wants to focus on how the state can be a source and indeed a friend of freedom rather than the object of restraint a: 2. Continuing with such metaphors of almost quasi-military resonance, Bollinger and Stone entitle their volume of collected essays on the First Amendment Eternally Vigilant, picking up from Justice Holmes in Abrams v.

United States a phrase that captures the necessity of protecting our freedom of speech, even the expression of opinions that we loathe, from the reach of governmental control unless an immediate check is required to save the country See Graber who offers an almost overwhelming typology of differing versions of the libertarian model, but primarily identies the natural rights libertarianism of the nineteenth and early-twentieth centuries that focuses on the individual and a free speech theory that focuses on groups within the American polity rather than individuals.

Schauer distinguishes libertarian arguments that favor the absence of government control over self-regarding actions from those that limit government control over other-regarding actions like speech. A constitutional system, a legal system sets limits on the governments capacity to oppress and the freedom of speech is but one of the many freedoms assured by the constitution to protect the individual and the people threatened by a potentially aggressive government. This model where the practice and defense of freedom of speech works against a political power, however, must be set in contrast to what we will nd when we turn to the parrh sia and democratic institutions of ancient e Athens in Chapter 4.

Then there will be no reference to an oppressive government against which the people, the d mos, need to protect themselves; e there will be no checking of a government that serves as their agent; there will be no ogre-in-waiting to oppress. And there will be no government limited by constitutional restraints. There was in ancient Athens no distinction between the government and the people such as exists in contemporary conceptual frameworks deriving from the liberal Lockean model.

The d mos is e the government. The d mos meet to pass the laws by which they themselves e will be governed. The d mos meet to make the policy choices for the city e whether to go to war, whether to kill the women and children of a colony that resisted Athenian rule, or whether to recall troops or send reinforcements.

And the d mos or rather e. Freedom of the press is obviously closely connected with freedom of speech and has created a huge interpretive industry of its own, at times indistinguishable from the freedom of speech debates. Freedom of the press concerns, though, have centered around questions of seditious libel, which, as Rabban nicely points out, addresses the key issue of popular sovereignty that lies at the heart of this debate.

The point Rabban claries is that seditious libel raises the question of whether the government is a partner in a contract or the agent of the people. The point here is that the government is seen as an alien force, whether it is understood as a partner or as the peoples agent, and that in both situations the government needs to be controlled by freedom of speech and freedom of the press and constitutionally restrained from interfering with those freedoms. John Stuart Mills great innovation on this theme drawing its own inspiration from Tocquevilles Democracy in America is, of course, to see the threat of oppression stemming not from government, but from the people themselves now constituted as society and the majority.

Athenian Political Oratory: Sixteen Key Speeches - David Phillips - Google книги

But reecting persons perceived that when society is itself the tyrant. The references here are to Thucydides 1. Before citizens left the ofce in which they served annually and for which they had been selected by lot, they were subjected to an ofcial scrutiny assessing whether they abused their ofces. The question during the scrutiny, though, was not whether they had deprived the d mos of their freedom but whether they had e enriched themselves by embezzling monies from the public treasuries.

Participation in decisions and rule, to use Aristotles denition of the citizen Politics 3. It was not a world where one consented to be ruled by a distant power nor was it an issue of establishing a bulwark to protect oneself from an overaggressive government. They celebrated as great heroes their tyrannicides, but they, as citizens ruling over themselves, were not the tyrants they feared.

The separation of the people and its government, so much a part of our language today and so ingrained in our understanding of the freedoms afrmed in the Bill of Rights, has no place in the political culture of the ancient Athenians. The regime was the self-rule of a democracy; it was not the liberal playing eld of the individual protected by constitutional fences ensuring assorted rights claims against a potentially oppressive government, nor was it a world where citizens were to be eternally vigilant in their commitment to prevent the potential abuses of a political power.

The modern individual possesses freedom of speech so that the government as his or her agent acts in the interest of the governed, so that those in authority do not misuse their power. This modern individual has little in common with the Athenian citizens sitting on the hillside of the Pnyx and participating in the Assembly in order to take upon themselves the responsibility of making decisions for the city as a whole.

The Athenian freedom of speech is the afrmation of the equality of participation and self-rule. Despite these fundamental differences, Athens surfaces regularly for many as the paradigmatic democracy to which one turns to defend freedom of speech in the modern world. Given that the emphasis for these thinkers is on democracy as a community of citizens, the concern is less with the fortress or bulwark and more with political life as a school of virtue.

In the next section I look at the most prominent of such efforts. See Manin for an excellent study of the differences between a regime based on lot and participation and one based on consent and evaluation. Of course, the portrait of the participatory Athenian democracy is overdrawn. Not all citizens participated, and certainly not all who lived in Athens were citizens. Meiklejohn, one-time president of Amherst College, life-long activist on behalf of free speech, and deeply devoted to the study of the classics, was the founder in of the Experimental College at the University of Wisconsin with its intensive study of Greek civilization for the rst year.

The health of modern democracy derived, for him, from the understanding of Athenian democracy. In the s and s, Meiklejohn was widely acknowledged as a national spokesman for the protections of free speech and his writings, especially the published version of the Walgreen lectures, set the agenda for those exploring the theory of free speech and democracy after him. Volume after volume on the topic of freedom of speech for the next half century has felt the need to devote at least some pages, if not whole chapters, to addressing Meiklejohns thesis about the relation of free speech to self-government.

United States. Such language of restraint contradicts what Meiklejohn reads into the constitutional principles of We the People. Meiklejohn begins his famous lectures by presenting the familiar view that the government is the agent of the People. Writing in , he prefaces his book with reference to the Attorney General who has restricted the speech of temporary visitors to our shores.

The Attorney General is afraid that we, whose agent he is, will be led astray by opinions which are alien and subversive, writes Meiklejohn. Meiklejohn then asks rhetorically, Do We, the People of the United States, wish to be thus mentally protected? To say that would seem to be an admission that we are intellectually and morally unt to play our part in what Justice Holmes has called the experiment of self-government xiiiiv. Yet, as Meiklejohn proceeds with his lectures, he loses interest in the Attorney General and focuses instead on the people: There is only one group the self-governing people.

Rulers and ruled are the same individuals 6. Further, Self-government is nonsense unless the self which governs is able and determined to make its will effective 9. It is this self-government that depends on the free ow of ideas and so Meiklejohn brings forth as his political ideal self-rule through the town meeting where [t]he basic principle. Though it lasted only from , this experimental college inspired programs, such as that of St.

Johns College, Annapolis, which emphasize the study of the ancient, and especially the Greek, classical texts. The commitment to regaining the Athenian political model extended to his role as educator as well. See, for example, Shiffrin ; Bollinger chap. See also Posts article entitled Meiklejohns Mistake and Fisss response to that article b: chap. Meiklejohns work defended the notion that free speech and democracy were to be understood as mutually constitutive. Yet, despite or perhaps because of the huge impact that Meiklejohn had on First Amendment jurisprudence in America, his work called forth its share of critical commentary.

Frederick Schauer, for one, describes Meiklejohns argument as a sterile formulation and urges his own readers to resist a conception of the electorate as a national debating society For Schauer, the justications for the protections of free speech offered by Meiklejohn evoke a false image of democratic assemblies, perhaps reminiscent of the Athens to which Meiklejohn was so partial, but not especially relevant to an understanding of democracy in the twentieth century. Nevertheless, others still attracted to the democratic potential of Meiklejohns argument develop his arguments with assorted and often idiosyncratic modications.

Those currently writing under the inuence of Jurgens Habermas see e. Joshua Cohen, as just one of many such participants in this discussion, writes: A framework of free expression is required for the reasoned consideration of alternatives that comprises deliberation. The deliberative conception holds that free expression is required for determining what advances the common good, because what is good is xed by public deliberation, and not prior to it. It is xed by informed and autonomous judgments, involving the exercise of the deliberative capacities.

So the ideal of deliberative democracy is not hostile to free expression; it rather presupposes such freedom. It would violate the core of the ideal of free deliberation among equals to x preferences and convictions in advance by restricting the content of expression, or by barring access to expression See also Benhabib I discuss Robert Posts work briey in the text, but see also Fiss a: 2 who explicitly attributes the theory he is going to adopt that free speech protection is a protection of popular sovereignty to Meiklejohn.

Fiss builds his case on the view that speech is valued in the Constitution. Sunstein makes an appeal to Meiklejohns work as a resource that would help solve many of our current controversies. The great complexity of the effort to associate free speech with deliberative democracy becomes apparent in Posts discussion of Hustler Magazine v.

Falwell where he points to the ways in which a freedom of speech that allows for outrageous speech can, by enabling the violation of community values, discourage the practice of public discourse. Post defends an interest in freedom of speech as foundational for the ideal of deliberative self-determination that sits at the core of democratic practice.

Doing so, Post suggests, allows for the protection of free speech to extend the concern simply with the processes of collective deliberation in the town meeting that Meiklejohn had defended to protections that facilitate the development of the individual autonomy of the citizen. Thus, freedom of speech becomes a vehicle to enhance not simply allow, as for Meiklejohn participation in the deliberative processes of democracy Post in this way moves the discussion of freedom of speech from its place in the political life of the Meiklejohnian regime to its role as promoting individual growth through the encouragement of autonomy.

In doing so, though, we see the perhaps inevitable move to a liberal theory that distinguishes contemporary discussions of democracy and that exists in uneasy tension with the Meiklejohnian or Athenian perspective. While on one level Post echoes the longing for the Athenian participatory regime, he does so with a widely different agenda when he refocuses on the individual and introduces such phrases as authentic selfdetermination. By doing this, he afrms a central distinction between the public and private individual and opens up an important for him chasm between public and private discourse.

Public speech in Posts model concerns the world of self-ruling citizens; private speech rests in the private realm and is subject to different forms of analysis and especially different forms of control and limit. This distinction allows Post to raise questions about the blanket application of the principles and freedoms of public discourse to private discourse, and enables him to ask whether private speech should enjoy the same protected status as speech engaged in the life of self-rule Post His worry is about speech that harms individuals.

Post senses the need that Meiklejohn did not to bring this familiar liberal dichotomy between public and private into play in order to address the controversies surrounding expressions of hate speech and to explore the conditions under which one could argue for protection against that form of harm and yet still insist on the freedom of speech as a vital political practice in a democratic regime of self-government. Meiklejohn, so enamored of the Athenian model he was teaching in his experimental colleges, scorned any reading of the First Amendments freedom of speech that looked to it as a doctrine intended to Post here is moving in the direction of the arguments based on self-development so prominent in Mills On Liberty.

I discuss those arguments in more detail in the next section of this chapter. Athens, not Mill, dominated the writings and endeavors of Meiklejohn. Post searches in his writings for a unity between Athens and Mill that Meiklejohn forthrightly rejected. That his speeches occurred outside the Assembly or law courts was irrelevant to whether his speech was part of the public life of the city. Athenian democracy was a regime that depended on its citizens, in Pericles words, becoming lovers erastes of the city Thucydides 2.

Though Socrates may have made much in his Apology of speaking in private to his interlocutors 31b in order to distinguish what he did as a philosopher from those who were active politically, Socrates speech about the nature of virtue, the soul, and what was worthy and unworthy, nevertheless was a public threat to the life of a political regime that had not encountered early liberalisms efforts to distinguish between public and private worlds. Parrh sia is not toleration of diversity. No wall of separation divided a proe tected public speech in the Assembly from a potentially unprotected private speech or the reverse.

The speech of Socrates in a literal marketplace of ideas was a speech that challenged the life of the community, whether it was spoken from a seat among the assembled d mos sitting on the Pnyx or from a bench e in a wrestling school Lysis or the home of the metic Cephalus Republic. The speech of Socrates played this public role precisely because there was not the liberal distinction between public speech and private speech, precisely because the practice of free speech was exercised publicly as an attribute of a free people who governed themselves; it was not the speech intended to This seems to form the crux of the various critiques of Meiklejohns position namely, that he focused primarily on political speech and did not pay enough attention to the need to protect the private speech of citizens.

This topic did not interest Meiklejohn and he is dismissive about the needs of many men to express their opinions 63 and warns about an excessive individualism 71 of such concern to Chafee and Holmes that Meiklejohn sees as the source of intellectual irresponsibility among self-governing citizens.

An interesting analogue to the problem of hate speech, though, may exist in the legal system of ancient Athens with the graph hubreos, a law that allowed for the prosecution of those e who suffered from the hubris of another. What exactly constituted hubris, that is, whether it was only physical harm and actions that demonstrated dishonor or whether it could include disrespectful speech, which would bring dishonor to the victim, remains unclear.

See the extensive discussion of this law in Fisher The tension between the fortress model and the Meiklejohnian selfgoverning body gives us very different understandings of how free speech may nd its place in the life of the political body. Meiklejohns approach is obviously much closer to that which emerges in ancient Athens.

The practice of freedom of speech in Athens was not a protection against a government that could tyrannize over the people. Rather, the practice of free speech as I shall develop in Chapter 4 was entangled in the egalitarian foundations and participatory principles of the democratic regime of the Athenians, a regime that emphasized equality, not rights,24 and participation, not the evaluation of performance associated with the practice of democratic elections.

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