When Free Speech is No Free Speech

While I wait for it to decide for or against me, I am going, Sir, to England to see if the colonists’ party, the sugar merchants' representatives, will also oppose the staging of my play on black slavery; to see if free people will pay attention to the selfish mercantile interests of an unjust, oppressive and inhuman party. Translated and staged in London this play might be better received than in France. If the English find that it is worthwhile, has a moral aim, is useful even to the colonies, they will make me continue the performances: sugar cane planters, coffee and indigo growers, would not bribe the actors to deprive the audience of it; and no one will come and say, as they did in the municipality of Paris, that it is impolitic to allow an incendiary play to continue being performed, after it has already been approved, censored and played. This behaviour is most extraordinary and quite incompatible with the declaration of the rights of man.—Olympe de Gouges (1790) “M. Necker and Madame de Gouges's departure or Madame de Gouges's farewells to the French and to M. Necker.” Translated by Clarissa Palmer

Gouges' pamphlet recounts some of the events surrounding her anti-slavery play, L'Esclavage des nègres (Slavery of the negro), which she tried to have performed in Paris. (The pamphlet does more than that and is very much worth reading.) The play was closed because performing it without disturbances proved impossible. As she makes clear in the passage quoted, she links the inhumane, political economy of mercantilism to the entrenched political interests that defend it. The point is not to attack commerce as such (not unlike Adam Smith she contrasts the bad effects of mercantile spirit with the good effects of commercial spirit).* 

In the quoted passage, Gouges appeals to article 10 of the (1789) Declaration of the Rights of Man, which reads, "No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law." (I discussed her even more striking version of this article yesterday [recall].)** In its particular limitation (public order), we can discern  a Spinozist strain. I return to Gouges' (implied) interpretation of this version of freedom of speech.

Gouges acknowledges that her critics charge her with violating the article; they claim her attack on slavery -- I think she may have the first to offer a sympathetic portrayal of a black man on the French stage (would love to hear from specialists) -- disrupts public order. Their argument is not, I suspect, that her view is controversial, but rather that she has encouraged slave revolts. And such a revolt may well objectively count as disturbance of public order (of the sort intended by the article). One need not agree with the argument, to see that it brings out one of the problems with this Spinozistic limitations on free speech (which has considerable status quo bias built into it). It is notable that Gouges leaves the limitation by way of public order in her own version of the article.** She clearly seems to think that because slavery is manifestly unjust her 'incitement' does not violate the intent behind Article 10. (In addition, she argues that the authorities had already agreed that her work did not violate the law and could be performed.)

Second, Gouges notes by taking advantage of their economic power, the slave-interests have undermined her very capacity to express her views (by bribing her actors).+ We can put her point in a slogan, while she has formal free speech, she fails to have effective free speech. Her critics are exercising their freedom of speech, they can say, and economic power to suppress speech critical of them. Any friend of freedom of speech has to confront the challenges this kind of purportedly legal speech suppression by (to anticipate Mill [recall here and here) one may call vituperative speech.++ 

Finally, Gouges thinks that such vituperative speech is against the spirit of article 10. It is notable, that from the American perspective, the article is worded rather broadly (its not just a limitation on the state), but also rather vaguely in one sense. One has a right to unworried [inquiété] speech. The natural initial reading is that one has a right to express oneself without adverse consequences. But as Gouges makes clear, this right is meaningless if one can't express oneself or has to overcome (worrrisome) obstacles to speech.

That is, she plausibly reads a right 'to not to be silenced' (and to be protected from vituperative speech) into the Article 10 of the Declaration. I have no idea, actually, how the French (then and later) ended up interpreting their article 10, but Gouges's position is certanly not silly given that the article nods to a freedom of conscience/religion.

 

 

 

*SHe makes the point in one of her more pacifist lines: "finally M. de la Fayette is named generalissimo. As for myself, I believe he would willingly abandon his post, if the endeavours of industry and commerce could extinguish the endeavours of the military that are so fruitless and ruinous for citizens, and return them to their homes and their affairs."

**Recall: "Article 10. No one is to be harmed even for his very basic opinions. A woman has the right to mount the scaffold; she must equally have the right to take the rostrum, provided that her demonstrations do not disturb the public order established by the Law."

+There is also evidence that slave interests brought in fake audience to disrupt her play. 

++It is vituperative because it has the intent to silence others and it does so by literally taking a way their channel of communication. 

Comments

[Chike Jeffers]

Really interesting post - interesting to me to learn of Gouges' play, which I didn't know about, and also to think about that fascinating question of legal interpretation, of what counts inquieter-ing someone for an opinion. It seems to me that the other legal question - about what counts as disturbing the public order - may come down to positivist vs natural law forms of legal interpretations...

[Sandrine Berges]

Gouges was very defensive of her play, but she also wasn't keen on being associated with revolts. In fact her whole attitude to emancipation was ambiguous, and at times a bit iffy: she thought that slaves should wait patiently for the values of the new republic to reach the colonies and that then they would be free. I've written about it here: http://www.sandrineberges.com/liberty-in-thy-name/a-strange-ally