Assuming that I may do what I like in private, should I be ‘free’ to insult you or God in public? For reasons that I discussed in a previous note (posted on 13 August last year), a question in those terms may not be all that helpful. There are so many possible legal consequences of speech that the phrase ‘freedom of speech’ is one of pious political aspiration rather than one that has any legal or juristic utility.
Since about the time that the State of Victoria was formed, it has been a criminal offence for a person in public to use indecent language or insulting words or to engage in offensive or insulting behaviour – or to engage in conduct to the same effect. The reason is that such behaviour is likely to lead to a breach of the peace if it does not do so in itself, and that the first object of the law is to preserve the peace. If during a wedding at a church or a synagogue a disappointed suitor marched up and down outside chanting the words ‘the bride is a slut’, or carrying a banner to the same effect, most people think that it would be better to allow the police to intervene than to leave the bride with an action for damages (for defamation, not nuisance) and to leave everyone else to their remedy of beating the villain up.
There is also a federal law dealing with racial discrimination that makes it unlawful to offend or insult a person because of their race. The federal law does not create a crime – it confers civil rights. It is not directed to speech but to conduct generally, whereas some state provisions are confined to words or speech. There is a requirement in the federal law that the conduct be in public but it is differently expressed.
The federal law deals with offence or insult directed to race, not religion. The state law mentions neither. It deals with offensive or insulting conduct, including speech, generally. The federal law might be seen as a specific application of the state law. There are all sorts of reasons why a law might deal with offences or insults to race but not to religion. One reason is that the difficulties in making legal rulings about race are as nothing beside those of making those rulings about religion.
If someone went on TV or stood on a street corner and said that some or all abos are idiots or crooks, they could be dealt with under the state law or the federal law. If someone went on TV or stood on a street corner and said that all Muslems are idiots or crooks, only the state law might apply because the federal law is about race, not religion.
There is a debate about the federal law which is said to involve issues of freedom of speech. A curious aspect of this debate is that those who want to get rid of the federal law say nothing about the state law although it covers much the same ground in wider and older terms. Do we want to legalise insulting or offensive behaviour in public that is calculated to inflame others and provoke a breach of the peace? Do we want to make it legal for a white man to walk through Chinatown with a placard saying ‘Slants eat cats’ or to stand outside a mosque chanting ‘Muslems follow a false prophet’ with a cartoon to match? Many people, and nearly all police, would agree that there is no reason to change those laws.
The abolitionists are high on ideology, and they are obsessed with phantoms. They think that a law that makes a form of words unlawful or illegal infringes speech and operates as censorship. If you were to offer one million dollars to a hit man to get rid of your ex or to blow up parliament, you would look a bit of a dill if you told the arresting police that they were imposing censorship on your right to free speech. This is another case of people substituting labels or slogans for thought, the hallmark of modern politicians. But if you wrote a script for the evening news that was riddled with what we call the magic words, you could certainly expect the script to be censored, and if not, the publisher would be liable to be dealt with under laws designed to protect manners more than morals. We do not hear calls to abolish those laws. Nor do we see people murdered when these laws are broken.
Why then is there concern about offence or insult caused by race? Is not the threat of a breach of the peace worse if I insult or offend you on the ground of your race? Or do people argue that the offensive or insulting behaviour should be a crime – unless it arises from race?
The other day, twelve people were murdered in Paris for insulting Islam in a newspaper. Before the dead journalists and cartoonists had been buried, the Australian press carried suggestions that these murders should reopen the debate about our federal law – although that law deals with race and not religion, and the number of dead suggests that there might be something to say for curtailing speech that is likely to lead to violence.
I am having trouble in seeing the connection between the murders in Paris and our debate about offending or insulting people on account of their race. Is it any more than this? These murders in Paris deter people from speaking their mind on religion. Murders are bad. Therefore our laws that deter people from speaking their mind on race are bad too. Even though we abolitionists say nothing about the other more general laws to the same effect which do not mention either religion or race.
It is curious that no one mentions our law of blasphemy. As I understand it (and the authority I refer to is at best wobbly), the common law in this country may still be to the effect that blasphemy is a criminal offence that is constituted by a form of denial of the basic elements of a religion in a manner likely to give offence, if not provoke a breach of the peace. If this part of our common law is still with us, it may give more offence than it did previously, because it is likely to be confined to Christianity, if not the Church of England, the church that our constitution says that our sovereign must be a communicant member of. I personally find it easier to get agitated about the role of a church in our constitution, and the law of blasphemy, than an arid politically driven discussion about one small part of our laws dealing with insulting or offensive conduct.
Our state laws dealing with offensive or insulting conduct have been used by police to control disruptive ratbags for longer than I can remember. When I started in the law, the police abused those laws by producing a ‘sheet of language’ when they could not think of anything else to charge a protestor with, but those days are long gone. I am not aware of any other reason to get rid of laws that appear to be sensible if not essential to a civilised community.
Since 1789, people in Paris and what is now Melbourne have been committed to the idea that we should be free to do what we like provided that it does not injure others. By the time you categorise all the ways in which others may be injured, there is not much content left to the original idea – the freedom is determined by the ambit of the exceptions, and where you draw the line is where you get the arguments. This is very common in the law. The events in Paris remind us that there are hundreds of millions of people in the world who can be greatly hurt by speech directed at their religious belief – so hurt that many of them want to kill those responsible. It is curious that that reminder leads some politically driven people in Melbourne to resume their campaign to abolish a law that gives another category of protection against injurious speech.
What are we to make of this? A lot of the agitation comes from the Institute of Public Affairs and friends and associates of Mr Andrew Bolt and Mr Rupert Murdoch. The conclusion that I draw about the IPA is that its members are strangers to the concept of rational thought and to the workings of the law, and that the IPA is a gift from God to the ALP. It is a gift that will keep on giving, just as years ago the faceless men behind the ALP kept on giving to the Liberal Party, because every time it opens its dopey mouth, the IPA spreads electoral poison. And that just might be a real triumph for free speech in this nation.