A Brief History of Conservatism (II): Free Speech

You would be hard-pressed to find a more contemporary dilemma in modern western culture than that of ‘free speech’. As the issue rears its head more frequently – especially, it would seem, on university campuses – the conservative finds himself more and more pressed to defend the liberal notion of the ‘right to free speech’, but increasingly left wondering what that ‘right’ actually means.

Some national cultures have a definitive stance on the issue; the Americans are clearly, by virtue of their constitution, in favour of the “right to free speech”[1]. Speech has even, in some cases, been interpreted, through the lens of ‘expression’, to mean the expenditure of money[2].

The British less so; we have no codified constitution and, as with most things, must fall back to tradition, custom or convention. Frequently I’ve heard the Human Rights Act (1998) quoted as a legal recognition of this right in the United Kingdom. Indeed, Article Ten instead states[3]:

Freedom of expression


1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.


2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The imposition of an alien and artificially-constructed perception of ‘rights’ aside, this article is partly reflective of the British custom of speech; it incorporates both the negative ‘freedom to hold opinions’, and the recognition of the ‘duties and responsibilities’ that the exercise of freedom of expression carries.

However, to enshrine this curiously British attitude to speech in law defeats the point; a ‘right’, as understood by Locke, is a naturally-occurring, inalienable phenomenon[4]. But, for the conservative, a ‘right’ exists only in the political realm against the state, something a ‘right’ can only be claimed against, wherein it places “a shield around the individual”[5]. (A deeper explanation of the conservative understanding of rights is forthcoming, but for now understand that rights, as political phenomena, exist in the political sphere only, to constrain the power of government).

We must understand that speech is an expression of consciousness. And, as poststructuralists show us – if these “useful idiots” must be listened to – because consciousness has a shaping role on speech, this relationship is co-dependent, meaning speech has a shaping role on consciousness. Orwell was fully aware of this relationship, explaining in 1984 the role language has on the way we think. His discussions on ‘newspeak’ made plain the idea that, if you do not have the words to express a thought, you cannot think that thought[6]. (Excuse my less-than-adequate expression… ironically).

Essentially, discussions on ‘freedom of speech’ concern two areas of society; the civil society, and the State. Furthermore, ‘rights’ are the language of government and legality, whereas civil society demands these discussions take place in the framework of ‘responsibilities’. As above, ‘rights’ exist to constrain the powers of government; the ‘right to free speech’, where applicable, exists to decide the limit of governmental control over what we say. Should we take this right as an absolute – as a right should be – the government has no role in what we say.

However, as we are the only beings capable of coherent, self-originating speech (I make this distinction against, say, a parrot), we must understand the responsibility of speech. While “the right to free speech” limits the power of government, it is the responsibility to other members of society that limit that speech in turn. For instance, imagine someone you (should) respect – it could be your friend, your parents, your teacher – and the limits to the things you say to them. You would, quite simply, not say anything disrespectful, because you respect them so. No-one has told you this limit exists, you simply feel it, either through empathy (the Golden Rule, or the Categorical Imperative), or the lived experience that you share.

However, the bonds of society that maintain this respectable discourse are torn apart when the right-claim is made, not against the State, but against other members of society. If we can say what we like with impunity – ignoring for a moment the consequences of State punishment – then why would any long-lasting associations be made? If we can insult one another and nullify the other’s legitimate feelings of insult, we void ourselves of all the natural associations we make based on decency and common respectability, and collapse into the “dust and powder of individuality”[7].

So, where does this leave us? Well, as I discussed in a previous article, endowing the State with the power to punish us for the freedom of expression necessary for responsible government – such as freedom of the press – only ever extends the power of censorship in one direction, towards totalitarianism. The “punishment” we experience in relation to the irresponsible expression of speech must be imposed by social condemnation. The institution of law, understood as a formalisation of the mores of social conduct[8], can and does hold accountable those of us who violate the social bond, but only where the violation felt can be traced to a common experience of responsibility and respectability, not a government-imposed deduction of what “might” or “could” be insulting.






This article is the second in the ‘A Brief History of Conservatism’ series by Jake Scott. The topic for the next article shall be ‘Government’.

[1] The First Amendment

[2] Buckley v. Valeo 1976, US Supreme Court ruling

[3] http://www.legislation.gov.uk/ukpga/1998/42/schedule/1 

[4] See John Locke’s Two treatises on government

[5] See Roger Scruton’s How to be a conservative, chapter six

[6] See George Orwell’s 1984, especially chapter nine.

[7] See Edmund Burke’s Reflections on the Revolution in France.

[8] While they are largely connected, the institutions of government and law are distinct, in that one can hold the other to account (the law holds the government), and one can only ever shape the other (the doctrine of English common law limits the arbitrariness of a priori edicts of government). This theory is more commonly expressed as judicial independence.

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