Is Freedom of Expression an Absolute Right?
Posted by rantingkraut on April 3, 2006
When debating freedom of expression, advocates of censorship usually claim that freedom of expression is not an absolute right but has to be balanced against other rights, such as a right not to be offended . Frequently the argument for censorship is based on an extreme example where few would disagree with an existing restriction: surely, the leader of a criminal gang should be punished for ordering gang members to carry out a murder. He may not have done the deed himself –by ordering the crime he is merely expressing something—but he is clearly guilty. Surely, perjury should remain illegal. On one level it is merely a verbal statement, an expression, while in practice it can pervert the cause of justice.
Defining rights: two forms of freedom
Freedom of speech is a concept that defines a specific liberty or a specific way of exercising liberty. The two phrases in the preceding sentence look very similar, but their similarity conceals an important difference: the difference between positive and negative freedom .
Freedom can be defined as negative freedom: by this definition you are free to the extent that nobody interferes with what you are doing. This definition lies at the heart of classical liberalism and libertarianism: nobody should be interfered with so long as he doesn’t interfere with others’ freedom to act as they please.
The alternative is that of positive freedom: by this definition you are free to pursue a specified course of action defined by the powers that be. This definition lies at the heart of social authoritarianism: the government is destined to intervene through regulation and re-distribution. Economic means for doing so are necessarily limited and regulation usually accommodates the interests of one group of people by limiting what members of another group of people can do.
The contrast between the two concepts should be obvious: a social order based on positive freedom is characterised by a finite set of permissions granted to individuals by the authorities. A social order based on negative freedom is characterised by the infinite number of uses that free people can make of their intellectual and material resources when they are simply left alone. Positive freedom belongs to a framework where the “state organizes the nation, but … leaves the individual adequate elbow room.”  Negative freedom establishes a norm that protects the individual and limits the power of the state.
Freedom of speech as a positive right
Where freedom of speech is seen as a positive freedom the question of whether or not it should be absolute does not arise. Under a paradigm of positive liberty there can be no absolute rights, since individual items in an expanding list of potentially contradictory entitlements can not simultaneously trump each other. This theoretical observation is re-enforced by its practical implementation: the large number of positive rights typically granted in a modern social democracy is by and large inconsistent. Freedom of association is inherently ad odds with anti-discrimination provisions just like freedom of speech is inherently in conflict with the legal protection of historical knowledge or religious sensitivities.
This need not mean that all social democrats take restrictions on freedom of expression lightly. Substantial leeway in political discussions may well be valued highly –if only for its value as an input in policy design and implementation. However, in such a framework, freedom of speech will exist as one among many intermediate policy objectives. It will be granted as a concession subject to satisfactory outcomes in other intermediate objectives and subject always to a general aim such as a more egalitarian society.
Freedom of speech as a negative right
From a classical liberal perspective there is only a general right to negative liberty and this right should be absolute so long as it is granted equally to others. As P.J. O’Rourke concisely put it:
“There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences.” 
Freedom of expression then is one concrete manifestation of this general right, even though it has historically been set apart because of its practical importance.
Like any other activity, the right to Freedom of expression should be protected by the general principle of liberty and should be constrained by the non-aggression principle. Freedom of speech does not give you an absolute right to hold speeches in my living room –not because of what you are saying, but because it’s my living room. The two examples mentioned in the introduction likewise show cases where the non-aggression principle is violated and where restrictions on freedom of speech are therefore justified.
Borderline cases remain under the classical liberal interpretation as well, but the defence for freedom of expression is a lot stronger than it would be under a positive rights interpretation. To claim that the non-aggression principle has been violated, you have to show that your individual rights, in the sense of negative rights, are compromised as a direct consequence of a verbal statement. This can be a matter of interpretation in some cases but it clearly excludes cases where expressions of opinion are just strongly disliked. The general principle of negative freedom gives you the right to hold whatever belief you like, but it imposes no obligation on anyone to show respect for your beliefs.
Conclusion: ideology matters
To conclude: how freedom of speech should be balanced with other rights depends on the most fundamental of ideological premises. For a classical liberal, individual rights should limit the power of the state. Freedom of speech is one such right and should only be limited by the negative rights of others. From a socialist perspective, as well as from a social authoritarian perspective more generally, liberties are conceded to the individual and are limited by the policy priorities of the state.
Islamist authoritarians largely fit into the latter category. Their policy priorities differ from those of traditional socialism, but they share the basic authoritarian outlook on society. The sub-ordination of freedom of speech under a right not to be offended makes perfect sense for the theocratic authoritarian, but it is incompatible with liberal democracy.
 For a detailed discussion of this terminology see: Berlin, Isaiah (1969) “Two concepts of Liberty” in Four Essays on Liberty, Oxford University Press
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