The (non-libertarian) case for freedom of speech

Most people default to defending freedom of expression on familiar rights-based grounds. Individuals possess rights, one of which is the right to speak freely. Government may restrain threats, fraud and other forms of wrongful conduct, but it should otherwise leave people alone.

In other words, we start with the individual ask what he or she is entitled to do. We imagine a protected sphere around the individual which public power may enter only for good reason. It’s a framework which is clear, simple, easy to understand and, increasingly in my view, a deficient way to think about the issue.

Thinking about this in a sound way matters more and more because the language of rights has become increasingly crowded. Freedom of expression is required to compete with claimed rights to dignity, equality, safety, inclusion and protection from harm. An official or judge must then decide how much weight each claim deserves.

The discussion quickly becomes one of balancing under which there is no guarantee that an old freedom will not be whittled away by a succession of other worthy public purposes.

The purpose of political association

The question of freedom of expression is really a question about the teleology of political association. Teleology is simply the study of ends or purposes. In political terms, the question is whether the state exists to pursue a substantive common end for the whole community.

The distinction drawn by the political theorist Michael Oakeshott between enterprise association and civil association gives us a particularly useful way of answering this question.

An enterprise association refers to an organisation that is teleocratic, meaning that it is directed towards an end. Members are joined in pursuit of a shared objective like victory, profit, salvation, equality, economic growth or national greatness. Leaders may properly organise people and resources towards that objective. Direction belongs naturally to an association whose members have accepted a common purpose.

A business, a church, a charity and a cricket team all share in this essential character, even though their purposes differ greatly. The board of directors set commercial priorities, the pope guards doctrine and the captain of a cricket team decides who should bowl. The leaders have this authority because the association already has a destination and members are assessed (at least in part) by how well they contribute to reaching it.

Government takes on this enterprise character when it treats the country as a common project. Citizens become contributors to an official program of equality, prosperity, unity, inclusion, national renewal or whatever the reigning ideology calls for. Policy is then judged by whether it advances the program and (inevitably) the value of discourse ends up being judged by whether it supports or obstructs the project.

Dissent becomes disloyalty because disagreement almost always delays or frustrates the common enterprise.

A civil association has a different structure. Oakeshott called it nomocratic, meaning that it is ordered through common rules. Citizens may pursue different and even incompatible purposes while recognising the same legal order. The law specifies the conditions under which they act without supplying a compulsory destination for their lives.

Civil association still contains plenty of purpose. Individuals are intensely purposeful, and government has the serious task of maintaining peace, courts and the rule of law. What civil association lacks is a substantive collective goal imposed upon everybody. The proper purpose of the association is simply to preserve the conditions in which civil life can continue.

The cricket analogy

Cricket makes the distinction easier to see, provided the analogy is drawn carefully. A cricket team is an enterprise association because it exists to win. The captain chooses tactics, sets the field and decides whether the batsmen should attack or defend. The players have accepted the objective, so tactical direction falls within his office.

The laws of cricket resemble the framework of civil association. They prescribe how the contest is conducted without deciding which side should prevail. A no-ball rule governs the manner in which the bowler delivers the ball, but it does not tell him to bowl a yorker or a bouncer. The rules shape conduct while leaving strategy and purpose to the participants.

The umpire’s authority comes from those laws. He calls wides, decides appeals and keeps the match within its recognised form. His view that attacking cricket is more entertaining gives him no authority to penalise a cautious batsman. Once he starts choosing tactics or favouring a desired result, he has exceeded the office of umpire.

Political life goes wrong when government imagines the whole country as one great national team. Citizens have never agreed upon a single victory condition, nor do they share one plan for religion, family life, economics or culture. Government therefore stands closer to the umpire than to the captain. Its proper concern is the legal framework within which citizens pursue purposes of their own.

Freedom of expression

This perspective changes the way I think about freedom of expression. The rights-based argument asks whether the speaker possesses an entitlement which government has infringed. The civil association argument asks whether managing opinion belongs to the proper office of government. The second question reaches the character of political rule before any competing rights are placed on the scales.

A teleocratic state evaluates speech by reference to an official end. Speech which promotes equality, cohesion, public confidence or social inclusion appears useful, while speech which unsettles those goals appears harmful. The pressure to regulate follows quite naturally from the original decision to give government a substantive mission. Once the destination has been selected, dissent becomes another problem to be administered.

And so we get the discursive panic about misinformation, harmful ideas and threats to social cohesion. Each phrase may describe something real, and some falsehoods are plainly dangerous. The constitutional question is whether government should organise public discussion around an approved understanding of truth, safety or harmony.

And my objection is that any government which accepts that task has made itself responsible for the direction of the national mind.

To be completely clear, the principles of civil association allow government to regulate speech used as a form of wrongful conduct. Threats are coercive, fraud corrupts civil dealings and perjury attacks the administration of justice. Laws dealing with these wrongs state general conditions of conduct which apply regardless of the speaker’s political allegiance. All they do is preserve the legal framework within which disagreement takes place.

But that regulation changes character when officials decide which opinions are socially constructive. A law against fraud asks whether someone deceived another person in a civil transaction. A regime against misinformation asks a public authority to settle contested claims and supervise their circulation. That power draws government away from maintaining common rules and towards directing a common enterprise.

The danger is not really linked to the desirability of the chosen end. Equality, national unity, public health and social peace can all be worthy concerns. An umpire may sincerely prefer a close and exciting match, yet sincerity does not enlarge his authority so that he can penalise batsmen too willing to leave off stump deliveries.

A more grounded argument

This argument should not be confused with libertarianism. Libertarians defend free speech by asserting that the individual owns their own mind and words, viewing any government interference as an atomizing violation of rights. The civil association framework views the issue through the lens of authority and institutional role: it defends free speech not because individual desires are absolute, but because the state is an umpire, not a manager, and controlling thought falls completely outside the scope of its office.

So instead of looking at the individual when it comes to the freedom of expression, we are better off being more concerned with the character, competence and limits of offices. Courts decide cases, Parliament makes law, churches teach doctrine and families raise children. A free society depends partly on each institution resisting the temptation to absorb the work of the others.

A good example of where this difference might show up is when it comes to bans on political campaigning near a polling place on election day. Under a strict rights-based framework focused on the harm principle, restricting peaceful speech on a public sidewalk seems unjustifiable (handing someone a flyer causes no direct injury, coercion or property damage). The civil association model reaches the opposite conclusion. The state’s concern here is not the content of the political message, nor is it attempting to shape voter opinion.

Its office is simply to maintain procedural integrity as the foundational mechanism of the legal order itself. A buffer zone is a content-neutral “rule of the road” that keeps the process orderly, calm, and accessible, ensuring the legal framework functions as intended without telling voters how to choose.

Upholding freedom means staying in one’s lane

Of course, we should not overstate these practical differences. In most day-to-day cases, a libertarian and a defender of civil association will land in the exact same place. The real divergence is not about how much freedom of expression we end up with, but how we justify it.

And on that score I have to say I have moved away from treating rights as the whole foundation of the argument. Rights remain essential legal protections and give citizens practical claims against government. But more and more I think we can best understand them as features of a civil order whose members live under common rules while pursuing different ends.

Their security depends upon preserving that underlying form of association more than it does any abstract defence of an individual’s rights.

Disagreement is to be expected among people who have not been enlisted in a single national project. This means citizens will differ about religion, morality, economics, history and the good life. And the state can only maintain civil peace by governing the terms of their conduct rather than selecting the conclusions they should reach.

Open argument is one of the natural consequences of such an order, not its underlying foundation.

This is what I mean when I say the real question is teleological. Are we associated because government has assigned us a common end, or because we acknowledge common rules while pursuing ends of our own? And so we protect speech not by glorifying absolute self-expression, but by recognising that a state tasked with directing opinions ceases to be a government of laws and becomes an engine of ideological control.