Free Speech, Human Rights And The Nation-State

Prior to the 1970s, people understood that rights such as free speech were something the nation-state granted its citizens. More sophisticated people understood that these rights would wax and wane depending upon circumstance. For example, when America was fighting a war, certain rights would likely be reduced or eliminated.

Ian W. Toll writes in his book (Twilight of the Gods: War in the Western Pacific, 1944-1945) about President Franklin Delano Roosevelt’s press conference on December 9, 1941:

For the previous forty-eight hours, the press had been scrambling to report what had happened in Hawaii. Apart from a small number of specialists who had covered the army and navy, most reporters were largely ignorant of military affairs and could not even name the nation’s top-ranking generals and admirals. Press secretary Steve Early had been providing regular briefings since Sunday, but there was much that he could not tell them. Bits and pieces of the truth had filtered back from Pearl Harbor through the rumor mill: hints of sunken battleships, airplanes destroyed on the ground, thousands of servicemen killed and wounded. Hysteria and fear were in the air. The Press Club on Fourteenth Street was humming with rumors. FBI director J. Edgar Hoover had coordinated the first tentative steps toward press censorship. The army had warned newspapers that nothing was to be printed about troop movements, and the navy had taken control of international telephone and telegraph offices. But in those first hectic days of the war, the government had not yet disclosed how and when news from overseas combat theaters would be reported to the American people…

The issues of war reporting and censorship were not raised until the second half of the hour. When they were, it was evident that FDR and his advisers had barely begun to think about these issues.
“All information has to conform with two obvious conditions before it can be given out,” the president said. “The first is that it is accurate. Well, I should think that would seem fairly obvious. And the second is that in giving it out it does not give aid and comfort to the enemy.”
The reporters were evidently more than willing to abide by a censorship regime—the catastrophe at Pearl Harbor had dramatized the need to protect wartime secrets—but they were also eager to separate facts from rumors. If they received information from a nonofficial source, source, asked one newsman, what should they do with it? FDR said they must withhold it until the military censors could review it: “The papers are not running the war. The Army and Navy have got to determine that.”
The president was peppered with a series of questions about Pearl Harbor, and he answered with a minimum of detail. Asked to confirm that thousands of sailors had been granted leave and were in Honolulu on the morning of the attack, FDR shot back, “How do I know? How do you know? How does the person reporting it know?” 11 Rumors were bad enough in peacetime; in wartime they were potentially fatal to the war effort.
That night, FDR addressed the nation by radio in his first wartime “Fireside Chat,” reaching a record-breaking audience of 60 million. The speech repeated and amplified the points he had made in his lecture to the White House correspondents a few hours earlier. Rumormongering was an understandable impulse, he said, but it was potentially damaging to the morale of the American people. “Most earnestly I urge my countrymen to reject all rumors. These ugly little hints of complete disaster fly thick and fast in wartime. They have to be examined and appraised.” The enemy would spread lies and disinformation aimed at confusing and frightening the American people, and it was their collective responsibility to stand up to such propaganda tactics. Nothing reported by an anonymous source should be believed. He added a direct appeal to the news media:
To all newspapers and radio stations—all those who reach the eyes and ears of the American people—I say this: You have a most grave responsibility to the nation now and for the duration of this war.
If you feel that your Government is not disclosing enough of the truth, you have every right to say so. But in the absence of all the facts, as revealed by official sources, you have no right in the ethics of patriotism to deal out unconfirmed reports in such a way as to make people believe that they are gospel truth. 12
In those early stages of the war, when the shock of Pearl Harbor was still fresh, leaders in the news media adopted a constructive attitude toward censorship. No editor, reporter, or radio broadcaster wanted to be blamed for harming the Allied cause, whether intentionally or inadvertently. All agreed, at least in principle, that vital military secrets must not fall into the enemy’s hands through the medium of a free press. A popular trade journal told its readers: “As between an ethical professional requirement that a journalist hold nothing back and a patriotic duty not to shoot one’s own soldiers in the back, we have found no difficulty in making a choice. Freedom of the press does not carry with it a general license to reveal our secret strengths and weaknesses to the enemy.” 13
Mindful that the government had overplayed its hand during the First World War, FDR moved cautiously. He expressed his personal distaste for censorship. “All Americans abhor censorship, just as they abhor war,” he said in a statement shortly after the attack on Pearl Harbor. “But the experience of this and of all other nations has demonstrated that some degree of censorship is essential in wartime, and we are at war.” 14
By January 1942, the federal government had established its basic policy. Reporting from overseas would be handled by “war correspondents” accredited by the army or navy, and their stories would be submitted to military censors prior to publication. But newspapers, magazines, and radio broadcasters at home would be subject to a strictly voluntary regime, with no provisions for prior government censorship and no new enforcement mechanisms. They would be asked to abide by a “Code of Wartime Practices for the American Press,” which listed categories of information to be withheld from publication for the duration of the war: troop movements, ship departures, war production statistics, the weather, the locations of sensitive military installations or munitions plants. No reference was to be made to information derived from intelligence sources, the effectiveness of enemy defensive measures, or the development of new weapons or technologies. For fear that spies or saboteurs might try to communicate through the American media, newspapers were asked to discontinue “want” ads placed by the public. For the same reason, commercial radio stations were to scrub open-microphone programs, call-in shows, and “man on the street” interviews. They would no longer take musical requests or broadcast local notices concerning lost pets, club announcements, or meetings.
A new federal agency, the Office of Censorship, was charged with implementing these measures. Byron Price, a veteran newsman who had most recently been executive editor of the Associated Press, was appointed director. Upon assuming his new post, Price vowed to resign before he allowed press freedoms to be curtailed, as they had been during the First World War, on such vague or capricious grounds as “public interest” or “national morale.”

Here are some highlights from this 2010 book (The Last Utopia: Human Rights in History) by Samuel Moyn:

* Historians of human rights approach their subject, in spite of its novelty, the way church historians once approached theirs. They regard the basic cause—much as the church historian treated the Christian religion—as a saving truth, discovered rather than made in history. If a historical phenomenon can be made to seem like an anticipation of human rights, it is interpreted as leading to them in much the way church history famously treated Judaism for so long, as a proto-Christian movement simply confused about its true destiny. Meanwhile, the heroes who are viewed as advancing human rights in the world—much like the church historian’s apostles and saints—are generally treated with uncritical wonderment. Hagiography, for the sake of moral imitation of those who chase the flame, becomes the main genre. And the organizations that finally appear to institutionalize human rights are treated like the early church: a fledgling, but hopefully universal, community of believers struggling for good in a vale of tears. If the cause fails, it is because of evil; if it succeeds, it is not by accident but because the cause is just. These approaches provide the myths that the new movement wants or needs.

They match a public and politically consequential consensus about the sources of human rights. Human rights commonly appear in journalistic commentary and in political speeches as a cause both age-old and obvious. At the latest, both historians and pundits focus on the 1940s as the crucial era of breakthrough and triumph. High profile observers—Michael Ignatieff, for example—see human rights as an old ideal that finally came into its own as a response to the Holocaust, which might be the most universally repeated myth about their origins. In the 1990s, an era of ethnic cleansing in southeastern Europe and beyond during which human rights took on literally millennial appeal in the public discourse of the West, it became common to assume that, ever since their birth in a moment of post-Holocaust wisdom, human rights embedded themselves slowly but steadily in humane consciousness in what amounted to a revolution of moral concern. In a euphoric mood, many people believed that secure moral guidance, born out of shock about the Holocaust and nearly incontestable in its premises, was on the verge of displacing interest and power as the foundation of international society. All this fails to register that, without the transformative impact of events in the 1970s, human rights would not have become today’s utopia, and there would be no movement around it.

* The best general explanation for the origins of this social movement and common discourse around rights remains the collapse of other, prior utopias, both state-based and internationalist. These were belief systems that promised a free way of life, but led into bloody morass, or offered emancipation from empire and capital, but suddenly came to seem like dark tragedies rather than bright hopes. In this atmosphere, an internationalism revolving around individual rights surged, and it did so because it was defined as a pure alternative in an age of ideological betrayal and political collapse. It was then that the phrase “human rights” entered common parlance in the English language.

* there is a clear and fundamental difference between earlier rights, all predicated on belonging to a political community, and eventual “human rights.”

* If the state was necessary to create a politics of rights, many nineteenth-century observers wondered, could they have any other real source than its own authority and any other basis than its local meanings?

* “Who will dare to avow that his heart was not lifted up,” Johann Wolfgang von Goethe exclaimed in 1797, “when the new sun first rose in its splendor; when we heard of the rights of man, of inspiring liberty, and of universal equality!” Unlike later human rights, however, they were deeply bound up with the construction, through revolution if necessary, of state and nation. It is now the order of the day to transcend that state forum for rights, but until recently the state was their essential crucible.

* [The human rights crusade emerged out of] “the distrust of utopia together with the desire to have one anyway.”

* Today it seems self-evident that among the major purposes— and perhaps the essential point—of international law is to protect individual human rights. “At the start of the new century,” one observer writes, “international law, at least for many theorists and practitioners, has been reconceived. No longer the law of nations, it is the law of human rights.”1 If that transformation is one of the most striking there is in modern law and legal thought, it is even more surprising that it really began only yesterday. Not only did the prehistory of international law through World War II provide no grounds for this development; for decades after, there would have been no way to believe or even to guess that human rights might become the touchstones they are today. Neither drawing from the humane spirit of founders centuries ago nor the recoil to World War II’s atrocities, human rights for international lawyers too are rooted in a startling and recent departure.

* one of the most fascinating testaments to the breakthrough of “human rights” in the late 1970s is the response of philosophers, who after a moment of confusion about their novelty assimilated them to natural rights principles that were themselves being revived.

In his April 4, 2023 column, Dennis Prager wrote:

Communism — or if you will, left-wing fascism and totalitarianism — is coming to America and Canada, and (a bit more gradually) to Australia and New Zealand…

Students at elite law schools such as Stanford and Yale behave as if they were members of Komsomol, the Soviet Communist Youth League. On the rare occasions that conservative speakers come to their campuses to give a lecture, students heckle, shout and curse at them, disrupting their ability to speak in ways reminiscent of the Hitler Youth in 1930s Germany.

The greatest of all freedoms, that of speech, is disappearing.

The rights granted by a nation-state always wax and wane depending upon circumstance. Prager’s column seems hysterical.

In exceptional circumstances, or in what are claimed to be exceptional circumstances, all functioning democracies dramatically curtail and eliminate rights, such as during the Covid pandemic.

Here are some highlights from a 2010 paper in the Minnesota Law Review by two Yale University law professors, Sanford Levinson and Jack M. Balkin:

“I’m the commander-see, I don’t need to explain-I do not need to explain why I say things. That’s the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don’t feel like I owe anybody an explanation.” – George W. Bush

If Americans know one thing about their system of government, it is that they live in a democracy and that other, less fortunate people, live in dictatorships. Dictatorships are what democracies are not, the very opposite of representative government under a constitution.2

The opposition between democracy and dictatorship, however, is greatly overstated.

* Carl Schmitt offers perhaps the most chilling analysis of all. Although he recognizes the possibility of commissarial dictatorships, where the ultimate goal of dictatorship is restoring the status quo, he assumes that elements of the sovereign dictatorship always lurk in the background, waiting to emerge and to transform any existing political order.74 No matter how well designed a constitutional system might be, the true sovereign will always be able to escape the confines of that design and make exceptions to it.

* Emergency, or at least claims of emergency, are the standard cause and the standard justification for creating dictatorships.

* Machiavelli argued that republics should plan for emergency allocations of power in advance. Does the American constitution meet Machiavelli’s test? Does it adequately build the possibilities of emergency into its design, to avoid the dangers of inertia, impotence, and deadlock yet still preserve republican government? Recall Chief Justice John Marshall’s famous statement in M’Culloch v. Maryland that “[the] constitution [is] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” 95 Notably, the word “crises” is italicized in the original opinion. Nevertheless, the text of the American Constitution is remarkably devoid of specific clauses that give government officials emergency powers. The most relevant example is the Suspension Clause, which allocates to Congress (contra the views of Abraham Lincoln) the power to suspend the writ of habeas corpus, but only “in Cases of Rebellion or Invasion [when] the public Safety may
require it.”96 Moreover, the Suspension Clause says nothing about other kinds of dangers, for example economic meltdowns, fires, floods and hurricanes, or even the invasion of a drug resistant virus. Nevertheless, constitutional emergencies may arise from many different sources.

* The first decade of the twenty-first century has made us all too aware of the various dangers that can plague our social orders; even the cost of terrorist attacks may pale in comparison to the damage wrought by tsunamis, hurricanes, earthquakes, or dangerous viruses. Thus in 2009, the President of Mexico, Felipe Calderon, placed the entire country under a “state of emergency” because of the potential swine flu pandemic. As John Ackerman, chief editor of the Mexican Law Review has explained, this serves to: “concentrate political power in his hands…. [President Calderon] has authorized his health secretary to inspect and seize any person or possessions, set up check points, enter any building or house, ignore procurement rules, break up public gatherings, and close down entertainment venues. The decree states that this situation will continue ‘for as long as the emergency lasts.’. . . This action violates the Mexican Constitution, which normally requires the government to obtain a formal judicial order before violating citizens’ civil liberties. Even when combating a ‘grave threat’ to society, the president is constitutionally required to get congressional approval for any suspension of basic rights. There are no exceptions to this requirement.”

Ackerman notes that Latin America has a “long history of using states of emergency as ploys to … return to authoritarianism.”

* Nikita Khrushchev paid for his commendable caution [regarding the Cuban Missile crisis] with his job, which suggests a degree of accountability that made the Soviet leader significantly less of a full-scale dictator than most Americans assumed.

* John Yoo, the author of the notorious “torture memos,” has argued that, despite American objections to King George III, the President still enjoys the powers possessed by the English monarch at the time of the American Revolution. Although Parliament retained the powers of the purse, Yoo explains, the King possessed unbounded discretion over the use of military force.

* Schmitt’s “sovereign” is the person who can successfully define something as a “crisis” and then basically do whatever he or she thinks necessary to meet the crisis.

* Asserting that the President actually has control over the entire Administration is a bit like the courtiers of King Canute who tried to flatter him by claiming that he could direct even the progress of the ocean’s tides. King Canute, on the other hand, had no such delusions of grandeur.

About Luke Ford

I've written five books (see My work has been covered in the New York Times, the Los Angeles Times, and on 60 Minutes. I teach Alexander Technique in Beverly Hills (
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