Are we free to offend is a question that we looked at on the first post on this site.  It was looked at again after the Charlie Hebdo murders.  Garry Trudeau is the creator of the cartoon Doonesbury.  He is obviously a very perceptive and articulate man.  He gave a speech recently to Long Island University that contained the following:

Why were they [his first cartoons] so subversive?  Well, mainly because I didn’t know any better.  My years in college had given me the completely false impression that there were no constraints, that it was safe for an artist to comment on volatile cultural and political issues in public.  In college, there is no downside.  In the real world there is, but in the euphoria of being recognized for anything, you don’t notice it at first.  Indeed, one of the nicest things about youthful cluelessness is that it is so frequently confused with courage.

In fact it’s just flawed risk assessment.  I have a friend who was the US army’s top psychiatrist and she once told me that they had a technical term in the army for the prefrontal cortex, where judgment and social conduct are located.  She said, ‘We call them sergeants.’…….

As you know, the Mohammed cartoon controversy began eight years ago in Denmark, as a protest against ‘self-censorship’, one editor’s call to arms against what she said was a suffocating political correctness.  The idea behind the original drawings was not to entertain or enlighten or to challenge authority – her charge to the cartoonists was specifically to provoke, and in that they were exceedingly successful.  Not only was one cartoonist gunned down, but riots erupted around the world, resulting in the deaths of scores.  No one could say to what positive social end, yet free speech absolutists were unchastened.  Using judgment and common sense were denounced as antithetical to freedom of speech.

And now we are adrift in an even wider sea of pain.  Ironically, Charlie Hebdo, which always maintained it was attacking Islamic fanatics, not the general population, has succeeded in provoking many Muslims throughout France to make common cause with its most violent outliers.

This is a bitter harvest.

Traditionally, satire has comforted the afflicted while afflicting the comfortable.  Satire punches up against authority of all kinds, the little guy against the powerful.  Great French satirists such as Moliere and Daumier always punched up, holding up the self-satisfied and hypocritical to ridicule.  Ridiculing the non-privileged is almost never funny – it’s just mean.

By punching downwards, by attacking a powerless, disenfranchised minority with crude, vulgar drawings closer to graffiti than cartoons, Charlie wandered into the realm of hate speech, which in France is only illegal if it directly incites violence.  Well, voila – the 7 million copies that were published following the killings did exactly that, triggering violent protests across the Muslim world, including one in Niger in which 10 people died.  Meanwhile the French government kept busy rounding up and arresting more than 100 Muslims who had foolishly used their freedom of speech to express their support of the attacks…..

What freedom of speech absolutists have failed to acknowledge is that because one has the right to offend to offend a group does not mean that one must.  Or that that group gives up the right to be outraged.  They’re allowed to feel pain.  Freedom should always be discussed within the context of responsibility.  At some point, free expression absolutism becomes childish and unserious.  It becomes its own kind of fanaticism.

If I may say so, there is much rude good sense here.  The people of Charlie Hebdo showed and they continue to show that they can stare down violence and death.  And for as long as they and others of a like mind continue to do the same, they will provoke violence and death for people who have had little or no choice about buying into this argument.  There is a dangerous naivety, a dangerous failure of risk management, a dangerous readiness to allow high theory to roll over bare facts in those whose faith in and commitment to an ideological imperative drive them to contradict the teaching of common sense and the prescription of ordinary good manners.

The people that Mr Trudeau calls ‘free speech absolutists’ may be dangerous for no other reason than that they subscribe to absolutes.  As soon as you allow absolutes in our political or legal thought, you will face an unacceptable risk that innocent people will have to be run over to accommodate the theory or prescription.

That is one reason why the common law avoids them.  It is one reason why we can get into awful trouble when we try to overlay the experience of the common law with some overarching constitutional imperative.  You have only to look at the juristic mayhem caused by the phrase ‘absolutely free’ in s. 92 of the Australian Constitution to see what damage can be done by absolutists when they seek to play around with our laws.  You might also look at the effects of the constitutional right to bear arms in the U S, and the frightful mayhem of a different kind that the U S Supreme Court has unleashed on its people as a result.

These issues were discussed by Sir Gerrard Brennan in a judgment in our High Court on the question of whether the law of defamation was inconsistent with a freedom of expression that the court found to be implied in our Constitution:

‘Freedom’ can be used in several senses and there is a danger in attempting to define a constitutional principle by use of an abstract noun of imprecise meaning, especially when the history of s.92 reveals that the corresponding adjective is extremely troublesome.  At the outset, it is necessary to distinguish between an absolute freedom and a freedom which is protected or guaranteed by law.  In law, there is no absolute freedom to do anything that might affect another.  Laws necessarily restrict absolute freedoms in order that all may live in a society of freedom under the law, by which we mean a society in which absolute freedoms are restricted by law to the extent that is thought appropriate to our history and culture……There are thus two distinct senses in which the term ‘freedom’ may be used.  One is a freedom to do anything – an absolute freedom; the other is a freedom or immunity from legal regulation created, expressly or impliedly, by the Constitution – a constitutional freedom.  The Court is concerned only with the nature and scope of constitutional freedoms.

One of the mantras of the champions of Charlie Hebdo, here and overseas, is that they have to protest against something called ‘self-censorship.’  Censorship is a form of control of speech.  It is assumed that any form of censorship is bad for that reason; a law that penalises a form of speech inhibits freedom of speech; anyone who succumbs to the ban and inhibition imposed by a law therefore engages in a form of censorship; any kind of censorship is bad; this law is therefore bad because it produces that bad result – it diminishes freedom of speech.

This is bullshit.  Almost every law diminishes our freedom because it forbids us to do something.  Almost every law diminishes our freedom of speech because our general law forbids us to agree to break that law.  If I offer you one million dollars to murder our head of state, you will think of the laws about murder and treason before you accept that offer.  If I offer you one million dollars to brand the Prime Minister a liar, you will think about the law of defamation before accepting my offer.  If I offer you a case of Johnny Walker Blue Label to stand out outside the MCG on Grand Final Day with a megaphone and publicly announce that a certain black footballer is as stupid as the rest of his race, you will give thought to at least three sorts of laws before accepting my offer.  Not necessarily in order, those laws are the laws of defamation, the laws dealing with racial vilification, and summary offences prohibiting insulting or abusive or offensive behaviour in public.  If you got legal advice, you would also be told that you will almost certainly miss the whole game because you will be in the slammer with no immediate prospect of bail.

In each of those cases, you would probably agree not to chance your arm.  If you chose to describe that process as one of ‘self-censorship’, people might give you a funny look, but that is just what the relevant laws were designed to.  They were designed to stop you from saying or doing something nasty that might hurt others – or just start a fight.  It is just absurd – or, in the language of Trudeau, ‘childish and unserious’ – to say that the laws that led to such an act of censorship are on that account bad.

This is I think no more than what Sir Gerrard Brennan, in the judgment that I referred to above, said in response to the argument of the press that the law of libel (defamation) has a ‘chilling effect’ on free speech.  Of course it does – that law is there to prevent some people from claiming to be free to destroy the reputations and lives of other people.

The defamation law, it is said, has a ‘chilling effect’ on the freedom to discuss government, governmental institutions and political matters which is inconsistent with the freedom.  The submission does not illuminate the answer to the relevant question.  It simply translates into tendentious language the legal truism that the tort of defamation achieves its purpose of providing protection for personal reputations by providing the remedy of damages against the tortfeasor.  If the publication of defamatory matter were not chilled by the remedy, there would be no sanction for publications that are neither justified nor excused. The question is not whether the absolute freedom to discuss government, governmental institutions and political matters is chilled by the law of defamation but whether the law of defamation, by chilling the publication of certain defamatory matter, is inconsistent with a constitutional implication.

So, we can forget any notion of absolute freedom, or of condemning a law merely for inhibiting freedom of speech.  The question for the law-maker then is this – given that we value our capacity to speak our minds with as little restriction on that capacity as possible, does the interest or value sought to be protected by the law imposing such a restriction warrant it?  This is the familiar question in the law of – where do you draw the line between interests of people that cannot all be accommodated?  There will frequently be a range of political views, in which there is no ‘right’ or ‘wrong’ – except to say that those who think that they can shut down the debate by invoking some political or ideological trump card are just plain wrong.

The law of defamation affects freedom of speech.  Some think it goes too far – such as the press; some think it does not go far enough – such as those who have been run over by the press.  There is no right or wrong answer.  We have laws meant to help preserve public order by making certain kinds of insulting words or offensive behaviour illegal.  These laws are never mentioned by the free speech absolutists.  Do we still need them?  Would they scrap them and just sit back and watch a riot start outside the MCG on Grand Final Day?  Opinions on these issues will vary as do opinions on most political issues.  Opinions also vary over time.  The relevant laws also vary greatly geographically.  We still have a law of blasphemy on our books.  It looks very different to us now than it did to our forebears one hundred years ago.  Should we keep it, or expand it?

We have laws forbidding insult or offence on racial grounds – these are just a particular application of those laws that enforce public order – should we extend those laws to forbid insult or offence on religious grounds?  In this country, is insulting or offensive behaviour on the ground of religion less likely to lead to a breach of the peace than insulting or offensive behaviour on the ground of race?  These are some more political issues that will not disappear with some ‘Open Sesame’ found at the bottom of a think tank.

One comment may be added to the last example.  Garry Trudeau asks the good question.  What is the point of provoking a religious group with language that we know will offend them?  Is it just to prove that we are so keen on this notion of freedom of speech that we will test others in our midst to and past their limits just to show how keen we are?  Or might the law-makers look more to the first purpose of our law – to contain violence and the vendettas that violence spawns?  Are we so politically naïve that we must champion the exercise of some ideological value that we will insist on doing so even when we know that as a result innocent people may well die?  Has our legal history sat comfortably on the shoulders of ideological champions?  Or do we behave like kids behind the shelter shed and say – it is not our fault but theirs’ – their ideas are not as good as ours?

In closing his speech, Mr Trudeau made two ad hominem points.  Charlie Hebdo had fired someone for being anti-Semitic.  Where you draw the line in offending a minority might therefore depend on the political clout of the offended minority.  The White House took a lot hits for not sending a big hitter to the march in Paris.  They may now look smart – especially given the identity of at least one big hitter in the front line of the march.  But, then, he was there to make a political point nearing an election, and in politics few things are sacred, especially at election time.  The ancient Gauls took many ferocious maulings when Julius Caesar was in their area – that we now call France – near election time.  Political decisions then as now were made on earthy, squalid grounds, far removed from the innocence of the colleges in our salad days.

Are we free to offend becomes a silly question.  If you mean ‘free’ in the legal sense, the answer is no; if you mean ‘free’ in some theoretical or absolute sense, the answer is yes, but at a price to be both determined and possibly paid by others.  The serious question of Mr Trudeau remains – why are some people intent on offending some other people for the sake of it?  And can they decently ask the rest of us to join in paying the price?  There is no black and white answer.

These are matters of deep moment for Freedom Boy and his appointor, Bookshelves, to ponder and opine upon.  At $400K+ a year, we stand assured of rich enlightenment.