The freedom of public communication — one of whose means, the press, has the advantage over the other, spoken discourse, of a far wider reach, but falls short of it in vivacity — and the satisfaction of that prickling urge to state one’s opinion and to have stated it, have their direct safeguard in the police and legal statutes and ordinances which partly prevent and partly punish their excesses, but their indirect safeguard in the harmlessness which is grounded chiefly in the rationality of the constitution and the firmness of the government, and also in the publicity of the Estates’ assemblies — the latter insofar as, in these assemblies, solid and educated insight into the interests of the state finds expression, leaving others little of importance left to say, and chiefly depriving them of the opinion that such speech is of any particular importance or effect; and further, in the indifference and contempt for shallow and malicious talk to which such speech necessarily and soon reduces itself.

To define freedom of the press as the freedom to speak and write whatever one wishes is parallel to defining freedom in general as the freedom to do whatever one wishes. Such talk belongs to a still wholly uneducated crudeness and superficiality of representational thought. It is, moreover, in the nature of the case that formalism nowhere clings so obstinately, and is so little amenable to being reasoned with, as in this matter. For the object here is the most fleeting, most contingent, most particular, most accidental element of opinion, in an infinite variety of content and turns of phrase; beyond the direct incitement to theft, murder, insurrection, and so forth, there lies the art and skill of expression, which appears in itself to be wholly general and indeterminate, but which partly conceals, at the same time, a wholly determinate meaning, and partly is connected with consequences that are not actually expressed and of which it is impossible to determine either whether they correctly follow from it, or whether they are meant to be contained in that expression at all. This indeterminability of the material and of the form prevents the laws governing it from attaining the determinacy that is demanded of law, and, since offense, wrong, and injury here take on their most particular and most subjective shape, likewise turns judgment into a wholly subjective decision. Moreover, the injury is directed at the thoughts, opinion, and will of others; these are the element in which it attains actuality — but this element belongs to the freedom of others, and it therefore depends on them whether that injurious act becomes an actual deed. — Against the laws, then, one can either point out their indeterminacy, or invent turns of phrase and forms of expression by which the laws are evaded or the judicial decision is claimed to be merely a subjective judgment. Further, when the expression is treated as an injurious act, it can conversely be maintained that it is no act at all, but merely an opinion and a thought, or merely a saying; and so, in one and the same breath, from the mere subjectivity of the content and form, from the insignificance and unimportance of a mere opinion and saying, its impunity is claimed, while for this very opinion, as my — indeed my most spiritual — property, and for the saying, as the expression and exercise of this my property, high respect and esteem are demanded. — But what is substantial is and remains this: that injury to the honor of individuals in general, defamation, vilification, bringing the government, its authorities and officials — and the person of the prince in particular — into contempt, mockery of the laws, incitement to insurrection, and so on, are crimes and offenses with the most manifold gradations. The greater indeterminability which such actions acquire through the element in which they find their expression does not abolish their substantial character, and has as its consequence only that the subjective ground on which they are committed also determines the nature and form of the response to them; it is this very ground of the offense which, in the response — whether this be determined as police prevention of crime or as actual punishment — makes the subjectivity of the view, its contingency, and the like, into a necessity. Formalism here, as always, sets about reasoning away the substantial and concrete nature of the matter on the basis of individual aspects belonging to its external appearance, and of abstractions it derives from them. — The sciences, however — insofar as they are indeed sciences — are situated neither on the ground of opinion and subjective views at all, nor does their presentation consist in the art of turns of phrase, allusion, half-utterance, and concealment, but rather in the unambiguous, determinate, and open utterance of meaning and sense; they therefore do not fall under the category of what constitutes public opinion (§ 316). — Furthermore, since, as remarked above, the element in which views and their utterances as such become an executed act and attain their actual existence is the intelligence, principles, and opinions of others, this aspect of actions — their actual effect and their danger to individuals, society, and the state (cf. § 218) — also depends on the character of this ground, just as a spark thrown onto a heap of gunpowder has a quite different danger than one thrown onto solid earth, where it dies away without a trace. — Thus, just as scientific expression has its right and its safeguard in its material and content, so too the wrong of an expression can find a safeguard, or at least toleration, in the contempt into which it has placed itself. Some part of such offenses, even where they are also punishable by law in their own right, may be set down to the account of that kind of nemesis which an inner impotence — one that feels oppressed by superior talents and virtues — is driven to exercise in order to come to itself against such superiority, and to restore to its own nullity a sense of self-consciousness, just as the Roman soldiers, in the triumphal procession of their commanders, exercised a more harmless nemesis through mocking songs for the hard service and obedience they had rendered — chiefly because their own names did not count in that honor — and thereby placed themselves in a kind of equilibrium with them. That base and malicious nemesis, however, is robbed of its effect by contempt, and is thereby confined — like the public that may form a circle around such busy activity — to a meaningless malicious pleasure and to the self-condemnation which it carries within itself.