Speech Matters: Getting Free Speech Right

Simon

Introduction

Free speech is a vital democratic freedom. It is also a freedom that most Australians take for granted. If you were to ask most of us whether free speech exists in this country, we would say yes. If you asked whether freedom of speech is important, we would also say yes.

Yet this broad consensus is only skin deep. When you scratch the surface, this consensus on freedom of speech fractures, demonstrating that Australians are not as comfortable with free speech as we profess to be. From the burning of the national flag to preventing political protests to censoring artworks, we consistently show a willingness to tramp on this vital human right. When an expression is seen as hostile, or controversial, or difficult, or challenging, we have a tendency to want to shut it down and silence it. This is deeply problematic.

The prevailing Australian political culture – which is made up of a combination of public attitudes, the regulatory and legal environments, and how public attitudes affect the creation and enforcement of those environments – on freedom of speech is hostile to aberrant speech, and is quick to concede speech restrictions that are not legitimate or justified. In political culture, where attitudes to free speech are expressed, this hostility is manifestly obvious. The focus of this book is on ‘political speech’, including political protest, use of the national flag, speech that promotes terrorism, hate speech, dissent and political art. I show that, in many cases, instances of political speech in Australia are regulated badly in political culture. That is to say that the public tends to try to shut down political speech instead of nurturing it and seeing it as important to democratic practice.

In this book I investigate instances of political speech to try to discover where, when and how speech is regulated in Australian political culture. I take the approach of looking at political culture and attitudes towards speech, because these are what determine the parameters of free speech at the coalface of political disputes. In Australia free speech is not explicitly protected either in the Constitution or in federal statutory law. There is no First Amendment, no lofty statement of values and principles to measure our behaviour against. This means that, although we tend to take freedom of speech for granted, its place and its boundaries are heavily determined by the behaviour of people in the legal system, the police, protestors, activists, corporations, artists and journalists. These are decisive in deciding whether, how, and to what extent, speech is actually free in this country.

I show how and why we have got speech regulation wrong in Australia today. We don’t really understand why free speech is important. As a corollary to that, we don’t really understand when and where it can legitimately be regulated. And as a result of that, despite Australians’ professed support for free speech, we are remarkably tolerant of activities that curtail it, even (and possibly especially) where that curtailment is illegitimate and wrong. We get free speech wrong, and we need instead to get it right.

It is the broader political culture that permits speech to be limited and restricted in Australian politics, in ways that raise serious questions about Australians’ commitment to democratic deliberation and participation. The Australian people have aided and abetted policymakers’ and regulatory forces’ unjustifiable curtailment of free speech. Rather than blame government for the strictures placed on freedom of speech, I question the efficacy and extent of the public’s commitment to freedom of speech in Australian political culture. I argue for a renewed protection for this vital freedom that is based on the cultural valuing of freedom of speech and a constructive engagement in democratic debate.

I challenge people to generate a more robust commitment to this fundamental freedom, and in so doing to liberate freedom of speech from the strictures in which it is currently entangled. This is because free speech is not just an abstract legal concept: speech matters.

In each chapter of this book I investigate specific instances of political speech and how they have fared in Australian political culture. In each I contrast the regulatory environment with public comment and attitudes in political culture in relation to those instances, and types, of speech. I question the viability of the regulatory environment that emerges, focussing on the vulnerability of speech protections in the Australian legal and political context. I use a range of sources to generate a picture of the attitudes that affect political speech in practice, including survey results, comments by parliamentarians, media reports, and reports by government, non-government and community organisations.

I also draw from original semi-structured interviews conducted with members of the general public in February 2009, to try to glean the attitudes of everyday Australians. Because this project was an investigation of people’s attitudes as well as of regulatory frameworks, I needed to gain as complete a picture as possible. Interviewing everyday Australians about their views on free speech was important to be able to test out my central hypothesis – that people expressed general support for the idea of freedom of speech, but that this support fractured once concrete examples of controversial incidents of speech were discussed. I conducted face-to-face interviews with 16 everyday Australians. The interview subjects came from a range of backgrounds, and were randomly selected to produce a distribution of age, gender, ethnic background, voting preference and socioeconomic group. The research findings were, in fact, remarkably consistent across all the interviewees. For convenience of reference, I have provided pseudonyms for the interviewees that will be used throughout the book.

It is important to note that these interviews are not, and were not intended to be, ‘representative’ of the views of all Australians. Semi-structured, open-ended interviews provide an opportunity for informal probing and ‘guided conversations’, which produce a wealth of data for analysis. Representative sampling in the sense of selecting a group of interviewees that is a microcosm of the demographics of the broader population is explicitly not required in this method of data collection. Of course, there are recognised limitations to this method of acquiring data, including the problem of generalising from the interviewees’ responses, and that the researcher needs to be aware of generating as wide a sample as possible within the method’s constraints of conducting only a small number of long interviews. ¹ These problems were addressed, first by considering the data obtained from interviews within the context of information gathered from a range of other sources. In this way, I did not rely solely on the responses of the interviewees to establish the argument. Second, the composition of the interviewees was as wide as possible, with individual interviewees aged between 18 and 60+; male and female; who self-identified as white-collar or blue-collar workers; with and without children in the household; married, de facto and single; Christian, Muslim and those who did not specify a religious belief; and from a range of self-identified ethnic backgrounds including Anglo-Australian, Indigenous Australian, Mediterranean, Lebanese and North African. All interviewees were Australian citizens or permanent residents, and individuals working in the fields of advertising, the legal profession, politics, the police force, journalism and market research were excluded from the sample.

The book is structured as follows: the first chapter answers the question ‘Why is free speech important?’ Becoming clear on an answer to this question helps to point us in the direction of where and when it might justifiably be regulated. I argue that free speech is important for two interrelated reasons. First, free speech is important because it is essential to democratic legitimacy. Democracy works when the people can criticise and engage with the political processes they are implicated in. People need to be able to discuss essential questions of governance to make democracy happen. Real democratic engagement requires freedom of speech. Second, free speech is important because it is what individuals need to do to make this process real. It is what connects the individual with the social. Saying that free speech is essential to democracy actually makes sense only when it is connected with the people who make it happen. So it is important to think of free speech as the ability to engage in the speech that makes democracy. By doing this, we can see that there is a robust argument for defending free speech.

At the same time, we can get a clearer idea of where and when it is legitimate to regulate speech. I do not argue that free speech ought to be absolute. If speech is destructive of democracy instead of constructive of it, if speech actually harms people’s ability to engage in the speech that makes democracy happen, then we have a justification for its regulation. As a society we need to regulate speech to make sure that we have the most robust democracy possible, and that we provide the environment within which individuals are able to make a contribution to their own democratic governance. When speech is destructive of these things, it can justifiably be regulated.

After answering the question of why free speech is important, I turn to consider whether, and to what extent, the idea of freedom of speech manifests in legal and regulatory culture. This justifies the book’s focus on political culture. In Chapter 2, I outline the absence of a constitutional protection for free speech, and how unusual this is internationally. I explain what the High Court of Australia has said about freedom of political speech in a series of key cases since 1992. I discuss survey data demonstrating a broad consensus on the importance of free speech in general terms, and establishing the key challenge to this consensus; namely, that when individual examples of speech incidents are discussed, and when speech challenges prevailing orthodoxies, this consensus fractures. Moreover, when it does fracture we get it wrong. The regulatory environment that arises is hostile to the speech that should be permitted, and permissive towards the speech that should not.

In the rest of the chapters I deal with specific manifestations and examples of political speech in practice and its regulation. First, I investigate the use of the national flag as a means of political protest, and argue that on flag-burning we have got the message wrong. Current practice privileges flag-use that is exclusive and destructive of democratic participation and censures the defacement of the flag as a form of political critique. This is completely the wrong way around. The opposite ought to be the case; exclusive and racist flag-use ought to be publicly decried, and flag desecration as political critique ought to be recognised as a legitimate exercise of free speech.

In the wake of the 9/11 attacks in the United States, governments around the world have ushered in a new era of anti-terrorism laws. In Australia, many of those laws have had a stifling effect on free speech. In Chapter 4, I examine the legitimacy of two aspects of anti-terrorism legislation, sedition laws and the banning of books, and argue that in the area of anti-terrorism laws, the public’s willingness to defer to laws that trample on free speech when they are justified as part of a broader attempt to ensure national security is particularly obvious. This willingness leaves us even more vulnerable to the weakening of those very ideals and values that make us a democracy.

Australia has a long history of anti-vilification laws. They have been in existence for over 20 years, and have provided a useful framework within which to address instances of hate speech in the community. Yet they remain controversial. In Chapter 5, I address some recent case studies in anti-vilification policy, including the 2009 jailing of Holocaust-denier Frederick Toben and cases in Western Australia. I also discuss the importance and effect of a possible new federal criminal anti-vilification offence that arose from the reform of sedition laws in 2009. I argue that anti-vilification laws are an example of a legitimate instance of speech regulation.

In the next chapter, I focus on peaceful protest, arguing that the ways in which protest at the coalface is treated by police, bystanders and governments at all levels reveal a deep ambivalence towards recognising the importance of this right, and protecting it in practice.

Corporations in Australia use civil lawsuits to prosecute activists, and to deter them from campaigning. These lawsuits mean that activists incur significant costs in defending their right to campaign, and have to devote considerable time and effort to court cases instead of to campaigning and advocacy. In Chapter 7, I look at the ways in which corporations can use civil laws to curtail political speech with which they disagree, even though the laws that are being used may not have been designed to impact specifically on political speech at all. The power of the corporation in regulating freedom of speech is usually overlooked, but it deserves scrutiny.

I also devote a chapter to the question of political art. Although political art is a central feature of democracies, it has suffered shutdown and censorship. The final empirical chapter looks at two instances of political art – one concerning an outdoor exhibition in Bankstown in western Sydney, and the other a gallery exhibit in inner-city Melbourne – and discusses how authorities clamped down on artworks expressing views with which they disagreed. The methods used to remove the artworks are highly expressive of a political culture within which local authorities see their mandate to be the removal of artworks that might cause a reaction in the community. This attitude is generated within the broader political culture, and is hostile to some kinds of political expression and quick to close them down.

I conclude this book by arguing how to get freedom of speech right in Australia. The successful curtailment of speech has rested on a political culture that has permitted such restrictions to happen. As a society, we need to address this willingness. We need to start thinking differently about freedom of speech, becoming more aware of when and where and why it is important, and defending it where necessary. An answer to the problem of free speech lies in strengthening political culture around freedom of speech so that we can start to get it right.

1Fiona Devine, ‘Qualitative Methods’, in D Marsh & G Stoker (eds), Theory and Methods in Political Science, 2nd edn, Palgrave Macmillan, Hampshire, 2002, pp.198–207.Back

CHAPTER 1

Speech Matters

Most Australians think, and seem to know intuitively, that free speech is important. But few of us ask ourselves why this is the case. Why is free speech important? A clear answer to this question helps to point us in the direction of why it ought to be protected.

As I mentioned in the introduction, free speech is important for two interrelated reasons. First, free speech is important because it is essential to democratic legitimacy. It is only by being able to critique openly and debate essential questions of governance that democracy happens. ² Real democratic engagement requires freedom of speech. Second, free speech is important because it enables individuals to develop their capacities to engage in processes of democratic legitimacy. By connecting the idea of democratic legitimacy with the question of individual capacities, I provide a robust justification for freedom of speech generally.

At the same time, however, we need to be cautious. Understanding that free speech is important, and why it is important, does not necessarily mean that speech ought to be protected everywhere and at all times. Speech cannot always and everywhere be free. Real free speech does not come from a free-for-all where anyone can say anything they want. If speech situations were not mediated at all, the speech of the loudest and most forceful could drown out the speech of the meek. Or the speech of those with the most resources could dominate over the speech of those without resources to make themselves heard. Or harmful and denigrating speech, the kind of speech that tends to intimidate its targets, could achieve its goal with impunity. It is logical that there ought to be some limits on freedom of speech to ensure that as many people as possible have an opportunity to be heard, and to participate. This means that we need to figure out where and when speech might justifiably be regulated. I do not support an absolutist position on free speech, and this chapter explains why. The framework I outline below provides direction for the legitimate and justifiable regulation of some speech – speech that is destructive of the values and goals that are the basis for its protection in the first place.

Why ‘political’ speech?

The kind of speech I will focus on in this book is speech that we can broadly term ‘political’. Many defenders of freedom of speech emphasise that in the context of protecting speech, political speech in particular ought to be protected to the highest degree possible. Political speech is said to be central to the free speech idea. This is because freedom of political speech is central to self-governance, and therefore to democracy. As a justification for free speech, this is called the argument from democracy. It is one of the most commonly expressed and widely understood arguments in favour of protecting free speech. Barendt describes it as the ‘most easily understandable, and certainly the most fashionable, free speech theory in modern Western democracies’. ³

Even though political speech is granted this prominence in democratic arguments supporting free speech, it is (perhaps surprisingly) seldom defined clearly. So, for example, political philosopher John Rawls discussed the centrality of free political speech to his idea of basic political liberties, but did not define it explicitly. ⁴ Others describe political speech as speech relating to ‘public affairs’, ‘criticism of governmental officials and policies’, ⁵ ‘debate on public issues [including] attacks on government and public officials’, or ‘a dialogue between ... governors and governed’ which is ‘conducive’ to democratic functioning. ⁶ Cass Sunstein defends the democratic idea of free communication among the people as a component of self-government. ⁷ These definitions all rest on the idea that the kinds of discussions and debates we can describe as ‘political speech’ provide the people with the relevant information they need to govern themselves, ⁸ to hold their representatives accountable, and to convey their thoughts and criticisms to the government of the day.

This is especially the case in the United States, the country with the strongest and widest protection of freedom of speech anywhere in the world. The First Amendment protects speech that is part of ‘public discourse’. ⁹ Interestingly, in the early part of the 20th century when citizens were prosecuted under sedition laws it was widely believed the First Amendment did not provide protection to such speech at all. But dissenting political speech is today regarded as being at the core of the kind of speech that is and ought to be protected by the First Amendment. ¹⁰

All these definitions are broad and lack specificity. This means they are open to interpretation and widely different understandings of what they mean. The following example is illustrative of this point. In August 1997 Sydney-based performance artist Simon Hunt created a persona called Pauline Pantsdown and produced two politically satirical songs as a way of critiquing the then-popular right-wing politician Pauline Hanson. One of them, called ‘I’m a Backdoor Man for the Ku Klux Klan’, was broadcast on the Australian national youth radio network Triple J. The song was made using edited recordings from media interviews of the voice of Pauline Hanson herself, and contained the words:

I’m homosexual. I’m a backdoor man yes I am ... Backdoor, clean up our own back door ... Backdoor – all our fears will be realised ... what I’ve called for is a homosexual government ... I’ve put the fence up now so they can’t get in – yeh ... I’m a backdoor man for the Ku Klux Klan with a very horrendous plan.

Within several days of the song being broadcast, Hanson had successfully applied for an injunction to prevent its further broadcast, pending a suit for defamation. An appeal against the injunction in the Queensland Supreme Court in September was denied. ¹¹ In denying the appeal, Chief Justice Paul de Jersey argued that the expressions contained within the song were ‘grossly offensive imputations’ which were ‘paraded as part of an apparently fairly mindless effort at cheap denigration’, and ‘could not possibly be said to infringe against the need for free and general discussion of public matters fundamental to [a] democratic society’.

Clearly the judge did not