We hear it all the time on American TV shows – "the
constitutional right to free speech".
It enables people to say the most outrageous things - such as
the Kansas religious group who turn up at military funerals holding
up signs saying 'Thank God for dead soldiers' and 'Pray
for more dead soldiers'.
Their twisted belief is that God is punishing America for
homosexuality by allowing soldiers to be killed in Afghanistan.
A grieving father took the small Westboro Baptist Church to the
Supreme Court – the highest court in the United States - to
ban them from funerals as a breach of privacy.
The court decided 8 to 1 that the First Amendment to the US
Constitution, part of the Bill of Rights enacted in 1789, meant the
church had the right to protest even though they inflicted pain on
Australian free speech – and its limits – aren't
enshrined in a specific law enacted by visionary politicians in
parliament, but in a mix of legal decisions by judges in various
cases that came before the courts over the years.
Surprisingly, this has only developed since the 1990s. The High
Court has ruled there is an implied freedom of speech under the
Australian constitution, but it is not absolute.
Free speech must come from facts not rumours. The intention must
be constructive and not to do harm. You cannot incite hatred
against others on the basis of culture, race or ethnicity.
There are laws against obscenity and restrictions on obscene
publications, and few argue against this as it covers pornography
and child abuse. But it can be controversial when applied to
matters of art.
Defamation law is meant to protect a person's good name, but
at times can be used to silence critics and opponents. Restaurants
have won defamation cases against food writers who gave them a bad
review with some courts awarding the restaurant up to $100,000.
Anti-terrorist laws curtail freedom of speech and there are
moves for a government appointed body to be set up to regulate the
media. Many might say this is rightly so, but it does mean what you
say can land you in jail.
Courts are starting to order social media carriers to reveal the
authors of defamatory posts so they can face prosecution.
Voltaire is reputed to have said "I disapprove of what you
say, but I will defend to the death your right to say it."
But if you have concerns about how far free speech can go it
would be wise to consult a legal expert rather than rely on
Voltaire or American TV shows.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
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