In Against Timocrates (139), Demosthenes praises the system for proposing laws in the western Greek city of Locris: a speaker proposing a law was required to stand with a noose around his neck. If the speaker failed to persuade the voters to pass the law he was hanged on the spot. Athens did not impose a punishment of comparable ferocity, but in this paper I contend that a provision in the Athenian impeachment legislation (nomos eisangeltikos) provided a notably intimidating legal mechanism for punishing speakers if the Athenians came to regret the policy they had been persuaded to adopt. Whereas a speaker in Locris faced an immediate threat to his life if his law was rejected, in Athens there was a virtual noose hanging around a speaker’s neck. The speaker clause in the nomos eisangeltikos suggests a critical difference between the modern and classical Athenian view of free speech. Public speaking entailed serious risks for the politically engaged citizen.
Free speech in ancient Athens is often discussed as if it is closely resembles free speech in modern democracies. Freedom of speech has been described as an essential value of the Athenian democracy (e.g., Raaflaub 1980, 2004; Ober 1989, 296; and Hansen 1991, 25-6, inter alios). The Athenians of course did not possess a First Amendment or have a class of jurists who determined what forms of speech were forbidden and liable to be punished. Yet public speaking was at the center of the Athenian political system. Demosthenes asserts that the Athenian system of government was “based on speeches” (On the False Embassy 184: ἐστ᾽ ἐν λόγοις ἡ πολιτεία). Plato’s Gorgias remarks that the primary utility of rhetoric is to persuade dikastai in the courts, bouletai in the bouleuterion, and voters in the ecclesia or in any other political assembly (Gorg. 452e). Livy goes so far as to say that oratory is more powerful in Athens than anywhere else (31.44.3)
While Athenian law never developed a broad legal framework for determining what constituted punishable speech, by the late fifth century the Athenians held rhetores accountable for having advocated a failed policy. In On Behalf of Euxenippus, Hypereides quotes the nomos eisangeltikos, in which one of the clauses allows for the impeachment of a “rhetor who speak contrary to the best interests of the demos of the Athenians and takes money for doing so” (4.8). In this paper, I argue that the meaning of μὴ λέγῃ τὰ ἄριστα allowed for the prosecution of a speaker, in part, because he had advised the Athenians to do something that they later came to regret. Further, the fact that the Athenians used the word λέγῃ instead of γράφῃ suggests that the Athenians conceived of this offense as a speech constraint. The law provided an instrument for prosecuting a speaker ex post facto for a policy that was judged a failure, thereby reflecting a broader Athenian principle of athenienses oratores caveant.
Responsibility for a failed policy lay with the speaker, not the voters (Lysias, For Polystratus 20; Arist. Rhet. 1364a). The rhetor clause has a terminus ante quem of 411/10 (Thalheim 1906: 308, followed by Hansen 1975: 17). Lysias’ For Polystratus (10) near verbatim quotation of the rhetor provision in the nomos eisangeltikos suggests that by 410 the Athenians punished speakers if their advice ended up harming state interests. I suggest that following the downfall of the Four Hundred there was need for greater regulation of speakers who could persuade the Athenians to effect anti-democratic measures (cf. Thuc. 8.67). Furthermore, as rhetoric became a major component in political life in the fifth century (Davies 1981: 114-5), Athenian law developed a legal mechanism to hold speaker’s accountable for their views. Moreover, I suggest that the rhetor clause in the nomos eisangeltikos must have influenced citizens’ willingness to speak in the ecclesia insofar as some civic-minded citizens would have been deterred by the potential threat of impeachment.