Freedom of speech

In the broader sense this topic is almost as comprehensive as humanitas itself. The value known as libertas could apply to any of the following: participation in the process of government by everyone; the restriction of such participation to a privileged elite; the absence of humanitas-negating acts of governmental oppression; the absence of restraints on intellectual activity and freedom of thought; the status of a free person rather than that of a slave; and the simple absence of physical restraints on individual freedom of movement.⁸⁵

Our focus will be on the absence (and later presence) of restraints on intellectual activity/freedom of thought.

In a well-known passage Tacitus criticises Tiberius for having enforced the maiestas law, and says that he forfeited the right to be seen as a protagonist of humanitas:*⁶

That law had the same name in the Republic, but quite a different scope. It covered acts, such as betrayal of an army, incitement of the plebs and maladministration of public affairs. But it did not apply to words. Augustus was the first to take judicial action against defamatory writings under the maiestas law, prompted by Cassius Severus’ scurrilous attacks on eminent men and women. Next, Tiberius ruled that the maiestas law was to be enforced. He, too, was vexed by anonymous pamphlets about his cruelty and arrogance and his disagreements with his mother.⁸⁷

One or two examples of the lampoons circulating against Tiberius and his mother, Livia, will serve to illustrate the sort of mischief that the regime wanted to suppress. �You cruel and merciless man! I’ll be damned if even your mother loves you!’ Also, �You are no knight; you do not possess the hundred thousands.

The essence of the change in the maiestas law was the attachment of a criminal penalty to defamation. In the Republic defamation had been a delict, a civil wrong generating a claim for pecuniary damages; but there had been no criminal sanction.⁸⁸ Even the civil remedy was circumscribed. Attacks on character were a standard manoeuvre in both political debate and trial proceedings. To cite only one of the innumerable Ciceronian examples, in 44 BC after Caesar’s murder the great orator delivered in the senate a series of scathing verbal assaults on Caesar’s lieutenant, Mark Antony. In one of these Philippics Cicero addressed the following remarks to Antony:

You utter madman! You practise declamation to evaporate your wine, not to sharpen your wits. When your boyhood ended you assumed a man’s toga but turned it into a woman’s gown. You were intimate with Clodius and attempted a certain act at his house. After joining Caesar you became bloated with the proceeds of your robberies.

You became a tribune in order to share a magistracy with your husband [C.Curio].

(Cic. Phil. II 42, 44, 48, 50)

Antony retaliated in kind, but took his ultimate revenge as triumvir in 43, when he had Cicero killed in the proscriptions.

The free climate of the Republic also permitted aspersions to be cast by actors, as long as the victim was not identified by name.⁸⁹ Most striking of all, scurrilous pamphlets were a feature of the Republican literary scene.

These various forms of character-assassination display the Roman equivalent of the media at work in the sphere of public life. They were so much part of the landscape that no one found it necessary to talk about them. When the young Cicero defended Sextus Roscius on a charge of parricide in 80 BC, he considered it his simple moral duty to attack members of Sulla’s faction even though he knew that he was virtually attacking the feared dictator himself (Cic. Off. 2.51). There were occasional reactions against this freedom, but none outside the parameters of the public interest doctrine that always had a braking effect on humanitas.⁹¹

A special freedom existed between Caesar and his army. Caesar was attacked on all sides for his special relationship with king Nicomedes of Bithynia, and for his liaisons with women. When he celebrated his Gallic triumph his soldiers marching in the procession sang ribald songs about him: �Caesar conquered Gaul, but Nicomedes conquered him.

But eventually the liberal Republic disappeared, and the new order brought the dissemination of information and opinions under a new set of rules. The criminalisation of anonymous pamphleteering was the first step. Augustus’ immediate purpose was to seek out the anonymous authors and to destroy the offensive material.⁹³ But â€?the burning of the books’ was anything but a routine measure. It signalled the start of censorship and thought control. The new technique had an exceptional potential for growth, spreading rapidly beyond the modest confines of pamphleteering. As early as AD 25 Cremutius Cordus was charged with publishing a history in which he had praised Caesar’s murderers, Brutus and Cassius, and had called Cassius â€?the last of the Romans’. In other words, the work had extolled the Republic at the expense of the Principate.⁹⁴ At his trial Cordus delivered a stirring defence of freedom of speech:

It is my words that are attacked, so innocent am I of deeds. But those words were not aimed at the emperor or his parent, who are protected by the maiestas law. I praised Brutus and Cassius, but many have spoken well of them without suffering for it. Caesar did not resent Cicero’s praise of Cato or the poems of Bibaculus and Catullus, nor did Augustus take umbrage at the false allegations in Antony’s letters and Brutus’ speeches.⁹⁵ Those rulers tolerated such things, displaying both moderation and wisdom. The Greeks were tolerant of attacks on those whom death had placed beyond censure or praise. It is not as if I am stirring up the populace to take up arms on behalf of Cassius or Brutus, both dead these many years. All that I claim is the right to remember them as an historian.⁹⁶

Cordus also mentioned that he had read the work to Augustus during the latter’s lifetime.

(Ad Marc. 1.3-4)

Seneca’s high regard for Cremutius Cordus was shared by his nephew Lucan, whose epic poem Pharsalia deals with the civil war between Caesar and Pompey. The work is in fact a bitter attack on the Principate as an institution. Lucan says the following of the battle of Pharsalus that virtually decided the civil war in Caesar’s favour:

Pharsalus undid us for all time, it doomed all future generations to slavery. What crime did the sons and grandsons of those who fought at Pharsalus commit that caused them to be born into slavery? Were they guilty of cowardly flight from the battle? To us, born later, Fortune gave a master. Why did she not also give us the chance to fight for freedom?

(Phars. 7.640-6 adapted)

One wonders how much of Lucan’s Republicanism was inspired by his uncle’s admiration for Cordus; but without the latter’s history we cannot make a comparison. Eventually Nero ordered Lucan to commit suicide, but that was because of his persistent hostility, culminating in his loud trumpeting of support for the conspiracy of Piso (Suet.

Stoic opposition intensified under the Flavians. The elder Helvidius Priscus, son-in-law of Thrasea Paetus, denigrated Vespasian so persistently that the emperor felt that he had been reduced to the status of a private citizen. Helvidius was put to death.⁹⁹ Domitian mounted a full-scale assault on the sect. The writings of Herennius Senecio, Arulenus Rusticus, the younger Helvidius Priscus and Fannia, daughter of Thrasea Paetus, earned them death or exile and the burning of their works. Besides praise of Thrasea and the elder Helvidius, their writings included a stage piece in which Paris and Oenone spoke words capable of being construed as a reflection on Domitian for divorcing his wife (Suet. Dom. 10.3-4). On a somewhat different tack, a spectator at the games died in the arena for loudly accusing Domitian of favouring a particular team of gladiators.¹⁰⁰

The systematic suppression of freedom of speech ended with Domitian. This was partly due to a sharper perception of humanitas by second-century rulers, but there was also something else. The intelligentsia finally realised that the game was up; the Principate had won.¹⁰¹ But the victory only came at a price. The emperors accepted the Stoic principle that succession to the throne should not be hereditary, but should go to the best man for the job, the Optimus Princeps. The resultant equilibrium made it unnecessary to continue suppressing independent thought, for the simple reason that it was no longer independent. The Stoics had become a pillar of the regime, so much so that eventually one of their number, Marcus Aurelius, was elevated to the imperial throne. As for literature, it had entered the so-called Silver Age, which is simply another way of saying that professionalism, dull but dependable, had replaced the pyrotechnics of the rebel with a cause.¹⁰² Tacitus describes the reigns of Nerva and Trajan as a fortunate age in which one could think what one wished and say what one thought (Hist. 1.1.4). Elsewhere he epitomises the character of the new thinking; he is writing specifically about oratory, but the passage has a wider relevance:

Great oratory is like a flame, needing fuel to feed it and movement to fan it. The eloquence of our fathers flourished under such conditions. Today’s pleaders exert as much influence as can be expected under a stable and settled regime, but in those turbulent times they did not need a strong single ruler. With champions of the people’s rights impeaching powerful criminals, the high status of the defendants was an incentive to eloquence. It is one thing to drone on (albeit systematically) about common theft, but quite another to fulminate against electoral corruption, extortion and homicide. On such topics was built the fame of Demosthenes and Cicero.

(Dialogus 36-7 adapted)

Not all the confrontations were with Stoics. Nor were they all based on defamation as such, whether written or oral. The maiestas law rapidly attained such a degree of flexibility that it protected the persona of the deified predecessor, as well as that of the incumbent ruler, against any diminution of his dignity, status or security. Suetonius was able to look back from the turn of the first century AD:

It was a capital crime [in Tiberius’ reign] to criticise any word or act of Augustus, such as removing Augustus’ head from a statue in order to substitute that of Tiberius, punishing a slave near a statue of Augustus [thus breaching the humane right of asylum], taking coins bearing Augustus’ image into privies or brothels.

(Suet. Tib. 58)

Other unusual extensions covered a member of the audience who failed to listen attentively to Nero’s â€?heavenly voice’ and a woman who undressed in front of a statue of Domitian.¹⁰³

Many of these absurdities were instigated by professional informers seeking rewards,¹⁰⁴ but the emperors tolerated and even encouraged these architects of thought control. The professionals reached the peak of their form in the mid-twenties AD, when Tiberius’ Grey Eminence, Sejanus, commissioned four informers to build a case against Titius Sabinus, one of the leaders of the opposition party established by the elder Agrippina.¹⁰⁵ After winning Sabinus’ confidence and getting him to speak freely against the emperor, the ingenious quartet â€?bugged’ the house of one of them, with the owner engaging Sabinus in treasonous conversation while the other three lay concealed in the roof, taking down a record of everything that was said.¹⁰⁶

Despite all this, however, a substantial body of public opinion condemned the excesses perpetrated under the umbrella of the maiestas law. Starting with Caligula, emperor after emperor proved his civic-mindedness, that is, in effect, his humanitas, by suspending the offending law. Some found ingenious ways around the suspension,¹⁰⁷ others reinstated the law,¹⁰⁸ but only after honouring the suspension for some time. Seneca’s enigmatic pupil is an example. An actor mimed the actions of drinking and swimming, accompanied by the words â€?Farewell father, farewell mother’, thus alluding to the death of Claudius and Nero’s first attempt to kill his mother. Nero banished him but did not impose a capital sentence under the maiestas law. After Nero’s second (successful) attempt to kill Agrippina he greeted the flood of pamphlets (â€?Nero Orestes Alcmeon—mother­killers all’) with a refusal to even seek out the authors (Suet. Nero 39.3, 2). From Nerva’s reign the suspension was carefully observed, though Marcus had to burn the record of one case to conceal the fact that he had cheated.¹⁰⁹ His credentials may be even more suspect if the jurist Venuleius Saturninus reflects a ruling of Marcus when he says that the maiestas law embraces the melting down of statues of the emperor that have already been consecrated (D. 48.4.6). But Venuleius may simply have been noting an interpretation going back to an active period of the law.

The law certainly resurfaced under the first two Severan emperors. The contemporary Cassius Dio speaks about �fictitious charges’, which is his way of way of presenting the maiestas law as an instrument of thought control (Dio 60.3.7). Septimius Severus and Caracalla laid down that the law did not apply where imperial statues worn down by age were restored, or where an imperial statue was struck by a stone thrown accidentally or was sold before it was consecrated (D. 48.4.5). It is clear that in circumstances not covered by these exclusions the law was in operation.

The only Severan ruler to revert to the Antonine practice of suspending the law was Severus Alexander; he totally ruled out the use of the law, whether for â€?fictitious’ purposes or to suppress conspiracies and other palpable threats to security.¹¹⁰ The lawyers were never really comfortable with the â€?fictitious’ charges. Writing shortly after Alexander’s reign, the jurist Modestinus observed that â€?Judges should not use this charge as an opportunity to show reverence to the emperor’s majesty; it should be decided on the actual circumstances of the case’ (D. 48.4.7.3). The esoteric categories were still in use. Thought control was still alive and well. It was needed in the Later Empire as much as in the Principate. A string of decrees from AD 319 to 406 provided for the destruction of defamatory writings and the punishment of the authors (CTh 9.34.1-10).