In Defence of Free Speech

Why the Harder Principle Matters More Than Ever

A Commentary on “What is Free Speech: The History of a Dangerous Idea” by Fara Dabhoiwala (London, Allen Lane 2025)

Free speech has returned to the centre of public life with an energy that surprises even those who thought the argument was finished. Weren’t Milton and Locke supposed to have done the heavy lifting? Didn’t John Stuart Mill leave us an intellectual architecture sturdy enough to outlast fashion, panic and political opportunism?

Apparently not. In Britain and across Europe, the language of free speech now triggers argument rather than consensus. In the United States, it has become a constitutional identity. And across the Atlantic, the gap between America’s First Amendment culture and the more regulatory instincts of other democracies is widening into something like a constitutional rift.

It is fashionable to treat this as ominous — a story about lies, hate, incitement, online radicalisation, and “speech acts” that do harm. Or even, as Ardern suggested, words become weapons of war. All of that is real. But there is a more basic truth that tends to get lost: the greatest danger in modern societies is not that too many people speak. It is that the state, its proxies, and the institutions that orbit them will decide which speech is permitted, which is disfavoured, and which is forbidden — and will call that process “safety”, “dignity”, “inclusion”, or “social cohesion”.

In other words, we are in danger of forgetting why free speech became a modern political ideal in the first place: not because speech is always nice, or because people are always wise, but because power is rarely restrained without a principle strong enough to withstand fear.

The strange politics of free speech

One striking feature of the current debate is how its political alignment has flipped. The loudest free-speech campaigners today are often found on the right: anti-immigration activists, Brexiters, anti-“woke” commentators, and self-described culture warriors. This is frequently offered as proof that free speech itself has become suspect — that it is merely a rhetorical cloak for reactionary politics.

But that conclusion is too neat. Political ownership of a principle is irrelevant to its validity. Free speech is not a tribal badge; it is a structural restraint on authority. It is entirely possible — and historically common — for the people currently out of favour with cultural or political gatekeepers to become the most vigorous defenders of liberty. When the left dominated university and media institutions, the right complained about suppression; when conservatives dominated church and state, liberals complained. The principle has always mattered most to those who feel the pressure of conformity.

Stanley Fish noticed the shift decades ago: terms once assumed to belong to the progressive tradition were being appropriated by neoconservatives, “particularly” free speech. That is not proof the concept is bankrupt; it is proof the concept is still alive. The language of liberty tends to migrate toward the fault-line where authority bites.

This also explains why alleged free-speech infringements that once outraged Guardian readers now appear on the front page of the Telegraph. The particulars change — an anti-abortion protester here, an academic controversy there — but the underlying anxiety is stable: who gets to speak, who gets punished, and who decides?

Recently the issue even became diplomatic theatre. Reports suggested the US State Department was concerned about freedom of expression in the UK in relation to criminal proceedings involving a Christian anti-abortion campaigner in Bournemouth. Vice President J.D. Vance warned that free speech in Britain and Europe was “in retreat”. Whatever one thinks of the politics behind those remarks, they capture something true: a significant part of the democratic world is becoming more comfortable with legal restraints on speech, and less comfortable with the idea that offensive ideas should be met primarily with counter-speech rather than prosecution.

That is a moment that deserves clarity, not slogans.

Why absolutism exists at all

Fara Dabhoiwala’s central contribution in What Is Free Speech? is to show that free speech is not an eternal, tidy doctrine handed down by philosophers. It emerged unevenly, by accident and improvisation, through political crises and technological change. There is something refreshing about that. The principle was not born of academic perfection. It was hammered into shape by friction with power.

To grasp why a strong — even “absolutist” — approach has such appeal, you have to remember what came before it.

Pre-modern societies did not treat speech as harmless. They treated it as dangerous — sometimes more dangerous than physical violence. The tongue was “a fire”, warned the Apostle James. Medieval courts were busy with defamation, “scolding”, blasphemy, heresy. An English law of 1275 criminalised the telling of “false news”. The line between words and acts barely existed. Speech was conduct; it was capable of destabilising the moral order, dishonouring families, provoking feuds, fomenting rebellion.

From this perspective, it is not hard to see how attractive the regulatory instinct remains today. Modern states and modern institutions, faced with information disorder, polarisation and online rage, are tempted to return to older assumptions: words are dangerous; therefore words must be policed.

But it is precisely because speech can be potent that the case for robust protection is so strong. If speech were trivial, there would be no need to defend it. We defend speech because it matters — and because those who wield power have the most to fear from it.

The modern free-speech breakthrough was not the discovery that speech cannot harm; it was the decision that the greater harm lies in giving authorities the power to decide what may be said.

From toleration to liberty

In England, the breakdown of print controls during the Civil Wars unleashed pamphlets, sects, heresies, disputes — and the recognition that enforced uniformity produces endless conflict. Milton’s Areopagitica argued that truth would prevail in open contest: “Let her and Falsehood grapple…” Locke’s toleration argued that peace required allowing religious diversity, because it was the refusal of toleration, not diversity itself, that produced “bustles and wars”.

These arguments were not naïve about risk. They were hard-headed about consequences. They identified a recurring pattern: once authorities acquire the habit of suppressing error, they also suppress dissent, satire, critique, minority belief, and inconvenient truth. The logic of censorship expands.

The decisive step toward modern, secular free speech came with “Cato’s Letters” in 1721. In seductive prose, Gordon and Trenchard put forward a simple proposition: freedom of speech is a right, bounded only by the equal rights of others. This was not merely a plea for toleration. It was an ideology of civic liberty.

It is common to describe this as “absolutist” with a hint of scorn, as if it were juvenile. But Cato’s brilliance was political rather than psychological: it understood that if you give power the discretion to decide what speech is “responsible” or “harmful”, you do not end up with neutral moderation. You end up with the enforcement of orthodoxy.

Cato’s influence on the American colonies was immense. And here we meet the accident that changed the world.

The First Amendment: a fortunate accident

The First Amendment’s language — “Congress shall make no law… abridging the freedom of speech, or of the press” — is often treated as a philosophical statement. It was, in truth, a constitutional reaction to recent tyranny. It was designed to prevent the new government from becoming the old one.

Critics sometimes dismiss this as context-bound and therefore unworthy of export. But that misses the point. Constitutions are written to restrain the recurrent temptations of power, not to express timeless philosophy. The First Amendment is blunt because the appetite for suppression is persistent.

There is a revealing “what if” in this history. Jefferson proposed a more balanced formulation: protect speech, but allow restriction of false facts that injure others or threaten peace with foreign nations. Had the timing been different — had mail been faster — America might have ended up with the European model: free speech, but punish “abuses”.

At first glance, that sounds reasonable. In practice, it is an invitation to politicised enforcement. “False facts” is a phrase that governments and activists can weaponise against opponents. “Threatening peace” is a phrase that can swallow dissent whole. The “balanced” formula tends to become elastic in the hands of the state.

The bluntness of the First Amendment is its virtue: it denies discretion. It stops the censor before the censor can begin.

The strongest argument for free speech is distrust

The modern case for an expansive approach is not that people never lie, never defame, never incite, never harass. It is that the alternative — entrusting power to decide which speech is permissible — is worse.

Every regime claims its censorship is reasonable. Every censor claims to be protecting society. The language changes with the era: heresy becomes hate; blasphemy becomes misinformation; sedition becomes social harm. The mechanisms, too, evolve. It is no longer only the state. It is universities, professional bodies, platforms, licensing authorities, employers, and regulators operating in concert, often informally, often without due process, and often with moral certainty.

In such a world, the strongest argument for “absolutism” is not romantic optimism but institutional realism:

• Power will expand its remit once it gains a speech mandate.

• Rules will be applied unevenly, because enforcement is always discretionary.

• Those who define “harm” will smuggle in ideology, because contested moral questions cannot be reduced to neutral administration.

• Fear will drive policy: the most extreme cases will be used to justify broad constraints.

• The chilling effect will fall on the cautious and conscientious, while true zealots adapt and evade.

The reason many democracies flirt with speech regulation is not that they have become wicked; it is that they have become anxious — about extremism, polarisation, and technological scale. But anxiety is the worst foundation for censorship.

Speech, violence, and the temptation of the worst cases

Here is where critics of absolutism press hardest: what about “messaged massacres”? What about manifestos that inspire violence?

The terrible chain of atrocities in Norway (2011), Charleston (2015), Britain (2016), Christchurch (2019), El Paso (2019), Buffalo (2022), Sydney (2025) is now part of the modern story. Each killer left behind words. Each killer sought an audience. Some cited replacement theory. Some praised earlier killers. The internet helped them distribute their rationalisations and hunt for ideological fuel.

These cases are real, and they test any civilised society.

But they also illustrate why absolutism exists. The instinct in the wake of atrocity is always to clamp down. To remove the text, criminalise the idea, and demand that someone — the government, the regulator, the platform — “do something”. Yet the practical difficulties are profound.

First, suppressing manifestos does not erase the underlying networks; it drives them into darker corners, where they are less visible and more mythologised. Second, regulation tends to sweep broadly: today a fascist manifesto, tomorrow a controversial book, next week a satirical film, next month a political argument deemed “harmful”. Third, censorship grants extremists what they often desire: proof that the system fears their ideas, and a propaganda story about persecution.

And there is a deeper point. If the test for suppressing speech is whether it might inspire a future crime, then almost any passionate political argument becomes suspect. Revolutionary movements, civil rights campaigns, and anti-war movements have all been accused of inspiring disorder. In such a framework, the safest speech is blandness — and blandness is not how societies correct injustice.

A free society cannot be designed around the worst people in it. It must be designed around the dangers of concentrated power.

Mill, revisited

Mill’s standard defence of free expression is not that speech has no consequences, but that the collision of opinion is the engine of intellectual and social progress. His famous concession — that speech may be punished when it constitutes “a positive instigation” to harmful acts — already contains the vital distinction: context and imminence.

An absolutist defence does not require denying that harassment, threats, conspiracy, and incitement exist. It requires insisting that restrictions be narrowly tied to conduct-like speech: true threats, targeted intimidation, direct incitement to imminent violence, unlawful coordination — and that everything else, however offensive, be met with counter-speech, social contest, and where necessary private remedies like defamation law with high thresholds.

The danger is the steady drift from this narrow category into a broad moral category labelled “harm”. Once “harm” becomes the organising principle, political life becomes a competition to reclassify disagreement as injury.

The real alternative to free speech is managed speech

Britain’s recent trajectory — hate-speech statutes, harassment law, online safety frameworks, expanding administrative powers — reflects a more managerial model of society. It is not necessarily tyrannical, but it does normalise the idea that speech must be supervised to maintain social peace.

The United States, by contrast, has constitutionalised the refusal to supervise viewpoint. This comes at a cost: more lying, more slander, uglier discourse. But it also delivers an immense benefit: the government cannot easily turn disagreement into illegality.

That is why the First Amendment is now being “weaponised” rhetorically in foreign policy disputes. The impulse to export America’s model may be self-interested and hypocritical at times. But the principle at stake is still substantial: should democratic states have the sovereign authority to define and enforce “safe speech” on digital platforms — or should speech remain presumptively free, with narrow exceptions?

A free-speech absolutist answers: presumptively free, because the power to define “safe speech” will not stay neutral.

The price is worth paying

There are unquestionable benefits to uncensored speech: it exposes abuse, corruption and hypocrisy. It allows victims to speak when institutions prefer silence. It gives minorities a fighting chance against the majority. It enables the discovery of truth not by official declaration but by contest.

Those benefits are not accidental. They are the point.

The argument for strong free speech is ultimately a wager: that the dangers of open discourse — ugliness, error, provocation — are less catastrophic than the dangers of managed discourse. That the cure of censorship is worse than the disease of speech.

And in the end, that is a wager about the nature of power. Power does not merely suppress extremists; it suppresses rivals. It does not merely protect the vulnerable; it protects itself. It does not merely remove hate; it removes inconvenience. Once a society builds the machinery to police opinion, it will be used.

That is why free speech cannot be defended only when it is comfortable. It must be defended precisely when it protects speech we dislike — because that is the moment the principle does its work.

The fabric of civility is precious, yes. But it is not preserved by giving authorities a censor’s pen. It is preserved by citizens learning — again and again — to meet bad speech with better speech, to refute rather than forbid, and to trust the open contest of ideas more than the promises of gatekeepers.

Free speech is not a guarantee of truth. It is the refusal to let power declare truth. The Government as the sole source of truth is well known to New Zealanders.

And in an era of anxious governments, moralised institutions, and political movements eager to relabel disagreement as harm, that refusal is not an antique luxury. It is the price of remaining free.