The Concept of Freedom of Speech in the Legal Domain and Its Premises
The choice is ours whether, if we hear the pipes of Pan, we shall stampede like a frightened flock, forgetting all those professions on which we have claimed to rest our polity. God knows, there is risk in refusing to act till the facts are all in; but is there not greater risk in abandoning the conditions of all rational enquiry? . . . The mutual confidence on which all else depends can be maintained only by an open mind and a brave reliance upon free discussion. . . . [W]e must not yield a foot upon demanding a fair field and an honest race to all ideas.
Judge Learned Hand1
It is not easy to research the biography of a Swiss traitor and it is even more difficult to get it published in Switzerland.2
Through the centuries, there has been a very marked reluctance in most parts of the world to give meaningful recognition to the right of the citizen to speak his or her mind freely on the administration of justice. Strengthening this official reluctance and acting at times as a corollary to it there has also been an ingrained reluctance on the part of society generally to concern itself very much with the administration of justice. One is really confronted here with a vicious circle: official animosity (expressed at times by sanctions) toward legal free speech leads to a popular reluctance as far as the critical broaching of legal matters is concerned, and this popular reluctance (partly based on fear but partly also on unconcern) again strengthens the hand of authority in the maintenance of its repressive stance. Bolstering this repression is the fact that the law and its administration do not inherently command the interest of most members of the public and hence of their media even in sophisticated societies, despite superficial impressions to the contrary as symbolized by the crowds at public executions in repressive regimes or by saturation publicity in the yellow press. A climate of unconcern by its nature is a notoriously fertile soil for the growth of suppression of liberties.