Many laws restrict what we can say, at least in public. Examples are laws about confidentiality, consumer protection, contempt of court, copyright, corporate regulation, defamation, electoral laws, fraud, nuisance, obscenity, perjury, privacy, sexual harassment, terrorism, and treason. All these laws – and there are lots more – are justified. And it would be silly to object to them because they impair our freedom to say what we like – each law is meant to do just that. The objection would mistake an inane mantra for a logical argument. The question is not whether the law impairs freedom of speech, but whether that impairment is justified.
Most cultures have had laws about insulting or offensive speech. The Code of Hammurabi banned ‘pointing the finger’ at someone’s wife. The Twelve Tables of Rome penalised anyone ‘who publicly abuses another in a loud voice.’ The Sermon on the Mount forbids ‘speaking contemptuously’ against a brother. Each of these laws impairs freedom of speech, but the only question is whether the impairment is justified.
These laws have two obvious justifications. Words can hurt as much as knives and guns, and verbal attacks can lead to fights – and it is the first duty of the law to preserve the peace. There is nothing new-fangled about this. In a book written nearly 800 years ago, an English judge called Bracton said:
An ‘inuria’ is committed not only when a man is struck with a fist or beaten with clubs but when he has been insulted or victimised by defamatory verses or the like.
It is hard to think of a civilised nation thinking or acting differently. And civilised nations also have laws to defend the dignity of individuals against group smears.
Take two laws in Victoria that deal with insulting or offensive language. A Victorian act forbids ‘indecent or obscene language or threatening, abusive, or insulting words’ in public, or behaving in an ‘indecent, offensive, or insulting manner’ (Summary Offences Act, 1966, s 17). You can go to jail for that misbehaviour. (Other states have similar laws.)
Then a federal act says that you must not publicly insult or humiliate people because of their race (Racial Discrimination Act, 1975, s. 18C). That law leads only to regulatory action.
Although the laws cover a lot of common ground – racial abuse in public might attract both – there are two obvious differences. The federal law is limited to language grounded on race, and it does not lead to criminal liability.
People complaining about this part of the law only refer to the federal law. Perhaps the reason is that the state law allows the police to intervene where someone says in public to a man and his wife, ‘You are a coward and your wife is a black slut’ – either inside the Australian Club or outside a boozer at Alice Springs. Only a lunatic could object to that kind of law. It would be justified in the exceptions to the right to freedom of expression in Article 10 of the European Convention on Human Rights. That right is expressly subject to ‘such… restrictions or penalties prescribed by law and… are necessary in a democratic society…for the prevention of disorder or crime.’ A government that repealed such a law might find itself without coppers on the beat the next day.
But if the state law is so obviously justified, why is not the federal law? It does not lead to jail, but it adds the requirement that the offending words be published because of the race of the victim. If the verbal attack is shown to be racist, does that not make it worse – will it not be more hurtful to the victim and more likely to start a fight?
Again, it is pointless to complain that either law impairs freedom of speech. That is the very object of the law. Is the impairment justified?
Perhaps we can look at it from the point of view of the objectors. They want to be free of this law. ‘Freedom’ in this context is ‘a faculty or power to do as one likes’. So, if people want to be free from this law, they want to be free to do what this law presently prohibits them from doing. That means that they want to be free to insult or offend others on the ground of race. Why would any sane decent person want to do that? Would you entrust anyone with such power?
So, the first fallacy of the opponents of the present law is that they think that impairment of freedom of speech on its own answers the question. The second is their failure to deal with the penal offences which are obviously essential and which are not complained of.
The third is that they attach an absolute value to the notion of freedom of speech that is not warranted. My freedom ends when it hurts you. There will of course be arguments at the edge. There are with all of our laws. But the principle is basic. It was recognised by the French in the Declaration of Rights shortly after the fall of the Bastille. ‘Liberty consists of the power to do whatever does not hurt others….The law has the right to forbid only actions that are harmful to society…. No one is to be disturbed because of his opinions, even religious, provided that their manifestation does not disturb the public order established by law…’ The notion that we might do whatever we like might be too much even for Donald Trump – or Rupert Murdoch.
So, why do some people in the media want to repeal the federal law? So that people who thrive on conflict can make more money? They work for people who publish for profit. The more power they have, the more profits they can make. They want you and me to give up rights so that they can insult and offend us with immunity from the law – and make more money to our cost. We are talking of people who live off the earnings of conflict. They are not pretty.
It is appalling that some politicians seem ready to listen to them. But then you go back to 2004 when the press engineered from their politicians changes to the laws of defamation across the whole of Australia which were all in their favour and all against you and me. They bleated about the ‘chilling effect’ of the law after the High Court had exploded that nonsense. The law is meant to chill.
But the press and politicians have always made an unattractive bunch of bastards when they get into bed together. As a result, you will not be surprised to learn that both Fairfax and Murdoch declined to publish a softer version of what is set put above. They are a selfish bunch.
The notion that these trading corporations should be trusted to act in the public interest is at best hilarious. Take for example this bullshit from the editorial of the AFR of 17 December glorying in the conviction of Obeid and the role of the press in having him put down.
But it was not without obstacles. Fairfax Media paid out $160,000 settling complaints made by Obeid. While there is rightly concern about free speech curbs in section 18C of the Racial Discrimination Act, the libel laws also let the powerful hide from proper inquiry. It is a disgrace that media organisations such as Fairfax Media have been penalised by the state for damaging the reputation of a politician now adjudged to have abused the trust placed in him. The defamation industry and the legal profession that sustains it should be ashamed of maintaining this conspiracy against the public interest. Personal reputations should be determined by the marketplace of free and open discussion.
This breathtaking bullshit could only have been composed by someone with a very sad history with the law – perhaps someone who lost custody of the money. (If that is the case, condolences, but I think this paper may have form here.) The fact that a plaintiff has subsequently been convicted on other charges throws no light on his prior civil actions for defamation – unless the paper says the man should be outlawed retrospectively. The suggestion that libel laws let the powerful hide from proper inquiry is as silly as saying that they and 18C have a chilling effect – and does Fairfax want to join the Murdoch pogrom on this? If Fairfax paid out that money by settlement, they doubtless did so because their lawyers advised them that their relevant publishing history warranted those payments. If they want to bleat like this, they will go down as bad losers, as bad as Andrew Bolt and the tragically embittered Bill Leak. It is absurd to say that a newspaper’s settling libel claims constitutes being ‘penalised by the state’: and it would be even sillier to say that of a judgment of a court. So far, it is empiricism without the benefit of evidence. Then we move to metaphysics without the benefit of logic. Well, if you are murdering language, meaning and truth, why not be Catholic in your choice of arms? The second last sentence is raw paranoia, of Trumpian inanity, and the last sentence is pure ideological cant that would make the IPA dream of great expectations. Surely the newspaper that publishes Jennifer Hewitt, Laura Tingle and Philip Coorey knows that Australians don’t like or trust ideologues?
How could a quality newspaper pack in so many boo boos and symptoms – so much bullshit – into a mere 112 words? But these are the people asking you and me to give up some of our rights against them.
If we here were prone to that sort of silly talk, we might say that they ‘should be ashamed of maintaining this conspiracy against the public interest.’
And a happy Christmas and a better new year – we’ll be going bad to do worse.
Poet of the Month: Vergil
Soon the crops began to suffer and the stalks
were badly blighted, and useless thistles flourish in the fields:
the harvest is lost and a savage growth springs up,
goose-grass and star-thistles, and, amongst the bright corn,
wretched darnel and barren oats proliferate.
So that unless you continually attack weeds with your hoe,
and scare the birds with noise, and cut back the shade
from the dark soil with your knife, and call up rain
with prayers, alas, you’ll view others’ vast hayricks in vain,
and stave off hunger in the woods, shaking the oak-branches.
One thought on “Passing Bull 83 – Some fallacies about freedom of speech”
Good piece. I suppose my one convoluted query is: how are transgressions that justify impairment of comment, speech et al to be measured – assessed? What weight should we place on perceived offence or injury, be it perceived personally or communally? Should we rely on the courts to develop and update standards, or templates, or should attempt to define it as tightly as possible…given that as the public person concept alludes, it is a moveable feast? That Qld uni action did smack of bullshit to me btw! All the best from the Maidens.
Sent on the run