Australia: How free is free speech?

Last Updated: 6 July 2015
Article by Marcus Priest

Where does a society draw the line between free speech and dangerous and inflammatory views? The events in Paris in the last week have triggered this debate. Perhaps the aftermath of the barbaric murder of staff at the French publication Charlie Hebdo is not the best time to have a reasoned discussion about the limits on free speech.

Different cultures have different views on where the balance is to be found and what should be the consequences when the right to free speech is abused. Even in Australia we have limits. For example, few accept that men can catcall from building sites to passing females. Nor do many accept the right of people to "black up" or call indigenous people derogatory names, even when it is an attempt at humour.

This is because in Australia and most Western countries, humour by a member of a majority group about a minority that has historically been oppressed or taken advantage of by members of that majority is rarely deemed acceptable. In that situation, we cannot separate the attempt at humour from the historical power imbalance. Humour should not be used to further oppression but to challenge it.

Similarly, in a post-colonial globalised world, we cannot ignore the cultural and historical sensitivities between developed and developing countries when it comes to commentary and humour about the religious practices in those countries.

That sensitivity was in evidence in leaked emails from the Al Jazeera newsroom highlighting deeply divided views on how the Charlie Hebdo massacre should be reported. An email from executive producer Salah-Aldeen Khadr urged reporters to raise certain points in their coverage and interviews that challenged the sloganeering and one-dimensional statements of principle concerning Charlie Hebdo.

"You don't actually stick it to the terrorists by insulting the majority of Muslims by reproducing more cartoons—you actually entrench the very animosity and divisions these guys seek to sow," suggested Khadr.

This was met with a response by US-based correspondent Tom Ackerman, "If a large enough group of someone is willing to kill you for saying something, then it's something that almost certainly needs to be said, because otherwise the violent have veto power over liberal civilization, and when that scenario obtains it isn't really a liberal civilization anymore."

Nevertheless, these cultural differences shouldn't be overstated. In the wake of the Charlie Hebdo massacre, newspapers across Arab countries published cartoons expressing solidarity and support with the French satirical newspaper. The Al Akhbar newspaper, which some view as pro-Hezbollah, printed a cartoon of cartoonists being shot with the tagline "freedom up in the air."

There is the added complication that when discussions about free speech and the use of humour involve religion, they inevitably attract even more intense, and often emotionally-charged, interest. This was evidenced in the 1970s in the United States when Monty Python's "Life of Brian" was released and, in Australia, over the artwork "Piss Christ". Such humour often challenges ideas and concepts that people of all faiths place a great deal of personal store in. And it is for that reason that such humour can be so powerful: because it challenges deeply personally held ideas and notions in a direct and confronting way.

We should respect peoples' faith. Equally though, we need to recognise that humour and satire about religion is often not intended to mock or degrade the religion or those people who genuinely believe in its doctrines, but rather is aimed at the abuses of power carried out in the name of that religion. Religion has often been used as an instrument or justification for oppression and the essence of powerful satire is to challenge and call out against that abuse of power.

Throughout history, humour, art and literature have been important weapons in the fight against oppression, particularly when they expose the absurdity and hypocrisy in the justifications used by oppressive regimes to exercise power. Why else are artists and authors among the first to be targeted by totalitarian regimes if they are impotent and insignificant?

This has indeed been the motivation for the attack on Charlie Hebdo; to intimidate and discourage those who seek to use humour and their right to free speech to challenge and confront those who use religion as an instrument of fear and oppression.

Yet is the appropriate response to such attacks to inflame an already volatile situation by republishing the satirical cartoons of Mohammad in the name of free speech? And is it, as some Parisians were quoted as saying, "too soon".

The classic defence of free speech, provided by John Stuart Mill in On Liberty, stresses the importance of creating a competitive marketplace of ideas:

"If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind."

This principle is subject to one caveat, argues Mill:

"The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."

But what constitutes such "harm"? Is it physical harm or is it injury of a much less tangible form? That is the nub of the problem. It is an age-old debate. I don't profess to know where the line should be drawn in Australia. Doctoral theses and weighty tomes have been written on the issue. And that is part of the problem. When boundaries are allowed to be drawn, it is open to government to do so to limit legitimate criticism of their actions and entrench their power, rather than to prevent harm to others.

Despite the fundamental nature of the principle of freedom of speech in western liberal democracy, there are also other competing and equally important freedoms. Most importantly, there is the freedom of people to practice their religion without being harassed and intimidated. There is also the right to live peacefully without fear of violence or harm. All these rights need to be balanced and weighed against each other in a pluralist society, in particular by governments and the legal system. No right should be supreme.

In the context of a proposed Bill of Rights in Australia, the debate has been one about who is best placed to conduct that balancing exercise—politicians or judges.

More often than not when free speech is abused, most members of the community instinctively recognise it and call it out. For example, poorly written and researched pieces by a senior journalist about Aboriginal people are not examples of free speech but simply bad journalism. Similarly a comment by a media proprietor that all Muslims should be held responsible for the Charlie Hebdo massacre can also, rightly, be quickly condemned as ill-informed and unhelpful.

The debate in Australia, as it is in all countries, is what the consequences should be when the right to free speech is abused. Of course, murder is never justified. But is community opprobrium sufficient in cases where someone steps over the fuzzy line? In the context of a proposed amendment of s 18C of the Racial Discrimination Act 1975 the question is whether in certain circumstances it should attract a financial penalty.

Curiously, some of those now championing freedom of speech are among the first to run online petitions calling for columnists who express views they disagree with to be shamed and dumped by their employer.

Grief, mixed with horror at the barbarity of the violent murder and the understandable desire to express solidarity for the victims is super-charged by the modern 24-hour twitter media cycle and leads to simplistic one-dimensional hashtag statements.

As a result, we risk the dangerous situation arising that, in order not to be derided as someone who supports terrorist murderers, we must tolerate any statement no matter how offensive, inflammatory or designed to incite oppression, intimidation, violence and harm. This does not allow reasonable and reasoned discussion of these complicated issues to take place.

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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Marcus Priest
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