"We're supposed to have freedom of speech in this country!"
"Are we? Why do you think that?"
So I was pretty dismissive of Sonia Hanson- I mean Kruger (it is hard to tell them apart now) in a recent post, although I want to again point out I said she is stupid but not necessarily racist. She waded into a discussion of something she really didn’t understand (or hadn’t bothered to think about) the complexities of.
Despite her ignorance on the subject, some Australians felt that Kruger had a right to be heard on this subject. While many articles like mine were critical of Kruger’s stupidity, others were quick to jump to her defence.
Now I don’t mind being criticised and having to defend my position (don’t feel sorry for me) but I never really had to, as no one raised a logical rebuttal to any arguments made critical of Kruger. The general defence of Kruger and her ilk has been the rather oxymoronic argument, ‘Don’t use your free speech to criticise someone else using their freedom of speech.’
Freedom of speech is a more complex issue than what those who seek a free pass to espouse hatred would have us believe. If you want to defend what someone says from public criticism you need a better argument than freedom of speech, as that same freedom legitimises the criticism you are trying to negate.
But this isn’t the only false assumption we make about freedom of speech. So let’s talk about some others. Now this could easily have become a book instead of a short essay, so I have avoided going into too much detail, but I acknowledge there is a lot more to talk about for those who are interested.
What is freedom of speech and do we have it in Australia?
Let’s start by talking about what we mean by freedom of speech and whether we hold that right in Australia. If you think freedom of speech means people have the right to say whatever they like without fear of consequence, then you don’t have freedom of speech. Few people in all of history have really had that right. Aside from others being within their rights to use their own freedom to criticise your words, there are already a number of legislative constraints on what you are allowed to say (burdensome things like the truth for example).
Unlike its American counterpart, the Australian Constitution does not explicitly grant its citizens freedom of speech. The High Court has found an implied freedom of political expression if it does not contravene other laws. Australian laws place significant restriction on this freedom, not least through section 18C of the Racial Discrimination Act (which really shouldn’t be controversial, but that is a topic for another time). So we do have a right to express opinions but it is not completely unrestricted. Firstly, if our words are stupid, we can be held to account by mocking from any that hear them. Moreover, if our words contravene our laws we can be held to account by the courts.
So when someone uses the throwaway line, “I thought we had freedom of speech in this country” in contexts like Kruger’s they are showing their own ignorance and intellectual laziness because they either haven’t considered what they mean by freedom of speech or haven’t taken five minutes to research the fact that we actually have quite limited freedom of expression from a constitutional standpoint.
It might be argued that freedom of expression of ideas and opinions is some form of universal human right and indeed the United Nations Declaration of Human Rights (article 19) makes just such a claim. However the same document also states a number of other universal rights that the Australian government- with the tacit approval of voters- ignores in in other cases. Our offshore processing camps are in violation of more than six articles from this document, showing that both the government and any Australians who support offshore processing do not actually consider these ‘universal’ human rights as morally binding except when it is convenient.
Do we need greater freedom of expression?
Now I do believe a form of freedom of expression is highly important to functioning democracy, in the same way that heavy censorship- pretty much the antithesis of freedom of speech- is always a feature of any tyrannical dictatorship. Looking at our own country, the Border Secrecy Act was a shameful act of censorship to hide the atrocities being committed in Australia’s name. Because they often hide misuse of power, secrecy and censorship are often against the interests of functioning society. But there is a tension here, because factors such as national security and public welfare really do constrain what information we would want in the public domain.
As someone who is regularly making contributions to the public domain, I rely on some form of freedom to publish without fear of government censure, but I always write accepting that those who disagree with me have every right to express that view. If I were to face legal action for my work, I know which laws I would be answering to. I think this works quite well in theory. Obviously a complicit media can give a veneer or legitimacy to government action that is anything but. If a government was so minded to purge dissent, I could theoretically still be arrested on a trumped-up national security charge and found guilty in a kangaroo court (although given how indecisive they are about far less controversial matters, I feel pretty safe while Turnbull is PM).
So do we have freedom of speech? Broadly, yes, as long as we follow the law. For the most part I am pretty happy with that caveat and would not see it abolished, but I recognise this system is still inequitable and favours those in positions of power and privilege. Wealthy individuals and organisations have far more power to try to intimidate people who make statements they do not like (as the gambling lobby tried to do to Andrew Wilkie) or deter complaints through the threat of costly legal battles complainants cannot afford (as the Catholic Church did in response to LGBTI activist, Martine Delaney’s complaints about their distribution of homophobic leaflets); while politicians do have the potential to misuse factors such as national security (hello Peter Dutton) to stifle legitimate debate and publication. Of course a situation of truly unrestrained freedom of speech would also benefit the wealthy and powerful- that is kind of the nature of privilege I suppose.
I know this is imperfect but I am kind of comfortable with this. It seems to be pretty close to the best we can do. Our words can have consequences to others, so to assume we are free to use them without any fear of consequences ourselves seems optimistic at best. Some regulatory mechanisms in the form of existing laws are required so that people know what they can and cannot say. The potential for abuse by governments is a necessary evil that I am afraid we have to wear as part of these laws that . I have written elsewhere that I would actually support greater censorship of the media’s almost masturbatory coverage of terrorist attacks, as it actively supports the terrorists’ agenda.
Conclusion (of sorts)
So aside from questionable interpretation of its innate primacy as a moral argument, there is also a fairly flexible interpretation of what freedom of speech means. We do not have all-encompassing freedom to say and publish what we want in the public sphere. There are limitations to our freedom that I am broadly in favour of. However with those limitations comes the complication that those with the courage to speak out against the government and powerful individuals are still slightly vulnerable (consider the shameful treatment of Duncan Storrar). Do we have it right? That is a really tough one. I don’t have a legally exact answer and admit ours is probably an imperfect system, but I would give these general points of advice to anyone who is unsure:
If you don’t know what you are talking about or you are not sure of the facts, don’t say anything?
If what you’re saying is likely to cause unnecessary hurt, damage or hysteria, don’t say anything?
If you can’t handle negative feedback, don’t say anything?
Apart from that, enjoy our freedom of expression that- aided by technology- lets us communicate and collaborate on a scale unlike any other time in history. This technology gives each one of us great power. But if Spiderman taught me anything (aside from the fact that Toby Maguire shouldn’t dance), it’s that with great power comes great responsibility.
Despite her ignorance on the subject, some Australians felt that Kruger had a right to be heard on this subject. While many articles like mine were critical of Kruger’s stupidity, others were quick to jump to her defence.
Now I don’t mind being criticised and having to defend my position (don’t feel sorry for me) but I never really had to, as no one raised a logical rebuttal to any arguments made critical of Kruger. The general defence of Kruger and her ilk has been the rather oxymoronic argument, ‘Don’t use your free speech to criticise someone else using their freedom of speech.’
Freedom of speech is a more complex issue than what those who seek a free pass to espouse hatred would have us believe. If you want to defend what someone says from public criticism you need a better argument than freedom of speech, as that same freedom legitimises the criticism you are trying to negate.
But this isn’t the only false assumption we make about freedom of speech. So let’s talk about some others. Now this could easily have become a book instead of a short essay, so I have avoided going into too much detail, but I acknowledge there is a lot more to talk about for those who are interested.
What is freedom of speech and do we have it in Australia?
Let’s start by talking about what we mean by freedom of speech and whether we hold that right in Australia. If you think freedom of speech means people have the right to say whatever they like without fear of consequence, then you don’t have freedom of speech. Few people in all of history have really had that right. Aside from others being within their rights to use their own freedom to criticise your words, there are already a number of legislative constraints on what you are allowed to say (burdensome things like the truth for example).
Unlike its American counterpart, the Australian Constitution does not explicitly grant its citizens freedom of speech. The High Court has found an implied freedom of political expression if it does not contravene other laws. Australian laws place significant restriction on this freedom, not least through section 18C of the Racial Discrimination Act (which really shouldn’t be controversial, but that is a topic for another time). So we do have a right to express opinions but it is not completely unrestricted. Firstly, if our words are stupid, we can be held to account by mocking from any that hear them. Moreover, if our words contravene our laws we can be held to account by the courts.
So when someone uses the throwaway line, “I thought we had freedom of speech in this country” in contexts like Kruger’s they are showing their own ignorance and intellectual laziness because they either haven’t considered what they mean by freedom of speech or haven’t taken five minutes to research the fact that we actually have quite limited freedom of expression from a constitutional standpoint.
It might be argued that freedom of expression of ideas and opinions is some form of universal human right and indeed the United Nations Declaration of Human Rights (article 19) makes just such a claim. However the same document also states a number of other universal rights that the Australian government- with the tacit approval of voters- ignores in in other cases. Our offshore processing camps are in violation of more than six articles from this document, showing that both the government and any Australians who support offshore processing do not actually consider these ‘universal’ human rights as morally binding except when it is convenient.
Do we need greater freedom of expression?
Now I do believe a form of freedom of expression is highly important to functioning democracy, in the same way that heavy censorship- pretty much the antithesis of freedom of speech- is always a feature of any tyrannical dictatorship. Looking at our own country, the Border Secrecy Act was a shameful act of censorship to hide the atrocities being committed in Australia’s name. Because they often hide misuse of power, secrecy and censorship are often against the interests of functioning society. But there is a tension here, because factors such as national security and public welfare really do constrain what information we would want in the public domain.
As someone who is regularly making contributions to the public domain, I rely on some form of freedom to publish without fear of government censure, but I always write accepting that those who disagree with me have every right to express that view. If I were to face legal action for my work, I know which laws I would be answering to. I think this works quite well in theory. Obviously a complicit media can give a veneer or legitimacy to government action that is anything but. If a government was so minded to purge dissent, I could theoretically still be arrested on a trumped-up national security charge and found guilty in a kangaroo court (although given how indecisive they are about far less controversial matters, I feel pretty safe while Turnbull is PM).
So do we have freedom of speech? Broadly, yes, as long as we follow the law. For the most part I am pretty happy with that caveat and would not see it abolished, but I recognise this system is still inequitable and favours those in positions of power and privilege. Wealthy individuals and organisations have far more power to try to intimidate people who make statements they do not like (as the gambling lobby tried to do to Andrew Wilkie) or deter complaints through the threat of costly legal battles complainants cannot afford (as the Catholic Church did in response to LGBTI activist, Martine Delaney’s complaints about their distribution of homophobic leaflets); while politicians do have the potential to misuse factors such as national security (hello Peter Dutton) to stifle legitimate debate and publication. Of course a situation of truly unrestrained freedom of speech would also benefit the wealthy and powerful- that is kind of the nature of privilege I suppose.
I know this is imperfect but I am kind of comfortable with this. It seems to be pretty close to the best we can do. Our words can have consequences to others, so to assume we are free to use them without any fear of consequences ourselves seems optimistic at best. Some regulatory mechanisms in the form of existing laws are required so that people know what they can and cannot say. The potential for abuse by governments is a necessary evil that I am afraid we have to wear as part of these laws that . I have written elsewhere that I would actually support greater censorship of the media’s almost masturbatory coverage of terrorist attacks, as it actively supports the terrorists’ agenda.
Conclusion (of sorts)
So aside from questionable interpretation of its innate primacy as a moral argument, there is also a fairly flexible interpretation of what freedom of speech means. We do not have all-encompassing freedom to say and publish what we want in the public sphere. There are limitations to our freedom that I am broadly in favour of. However with those limitations comes the complication that those with the courage to speak out against the government and powerful individuals are still slightly vulnerable (consider the shameful treatment of Duncan Storrar). Do we have it right? That is a really tough one. I don’t have a legally exact answer and admit ours is probably an imperfect system, but I would give these general points of advice to anyone who is unsure:
If you don’t know what you are talking about or you are not sure of the facts, don’t say anything?
If what you’re saying is likely to cause unnecessary hurt, damage or hysteria, don’t say anything?
If you can’t handle negative feedback, don’t say anything?
Apart from that, enjoy our freedom of expression that- aided by technology- lets us communicate and collaborate on a scale unlike any other time in history. This technology gives each one of us great power. But if Spiderman taught me anything (aside from the fact that Toby Maguire shouldn’t dance), it’s that with great power comes great responsibility.