josh rosner


In Australian Politics, United States of America on September 27, 2011 at 3:49 am

Notions of free speech have been debated for thousands of years. At his trial in 399BC, Socrates said: “If you offered to let me off this time on condition I am not any longer to speak my mind … I should say to you, ‘Men of Athens, I shall obey the Gods rather than you.’”

In 1633 Galileo Galilei found himself before the Inquisition after claiming the sun does not revolve around the earth. He was not the first to face persecution for publicly expressing an opinion and he certainly won’t be the last.

Most of us living in liberal democracies, where free speech is either enshrined constitutionally or has a long legal lineage, would say we subscribe to the kind of free speech it is claimed – albeit without foundation – Voltaire was talking about: “… I detest what you write, but I would give my life to make it possible for you to continue to write.” That Voltaire never actually said those words is not the point. We’re discussing the sentiment here.

I suspect many, if not most of those same people could easily be convinced to recant.

In the United States, the First Amendment to the Constitution is taken very seriously. It reads:

            Congress shall make no law respecting an establishment of religion, or

prohibiting the free expression thereof; or abridging the freedom of speech

or of the press; or the right of the people to peaceably assemble, and to

petition the Government for a redress of grievances.

This very American ideal of free speech has existed in this form since 1791. Americans believe themselves to be an open and accepting society in which free expression is not only tolerated, but is the right of every citizen. The reality is very different.

On the day after New York’s World Trade Centre fell to the ground, Ward Churchill, then professor of ethnic studies at the University of Colorado at Boulder, wrote an essay entitled Some People Push Back: On the Justice of Roosting Chickens, in which he asserts that it was America who first started the violence and as such it really should not be inconceivable that “some people push back”.

It took a couple of years for Churchill’s essay to hit the public consciousness, but once it did the response was predictable, untempered and vitriolic. Media commentators called for his resignation, declaring him unfit to teach. The University of Colorado Board of Regents issued a public apology for Churchill’s essay, which failed to appease those baying for his head. In 2007, Churchill was fired. His unlawful termination of employment lawsuit remains ongoing.

Whether you believe someone has the right – in this case an American, Ward Churchill, under the First Amendment – to publicly suggest America got what was coming to it on 11 September 2001, or not, the point is a line was drawn in the sand by some people who found Churchill’s words repugnant. It’s what American literary theorist and Milton scholar, Stanley Fish, calls a “trigger point”; something, he argues, we all have.

Fish’s argument is simple. He believes that nobody has ever supported free speech because the kind of free speech we understand and enjoy is really what is left over after we have discarded everything we find unpalatable. That is, after we’ve drawn a line in the sand.

Proponents of uninhibited free speech argue that necessity is the excuse offered for every infringement of free speech. In the U.S., they cite the Patriot Act, for example. It’s a nice wordplay, but I wonder if they really believe it. We all draw a line in the sand, even if we do out best to convince ourselves that in defending free speech we also defend the speech of people we hate.

Sometimes our government draws a line in the sand on our behalf. The Australian Department of Immigration and Citizenship lists Five Fundamental Freedoms about living in Australia. The first is: Freedom of Speech. The  department’s website says of free speech in Australia’s:

Australians are free, within the bounds of the law, to say or write what we

think privately or publicly, about the government, or about any topic. We

do not censor the media and may criticise the government without fear of

arrest. Free speech comes from facts, not rumours, and the intention must

be constructive, not to do harm. There are laws to protect a person’s good

name and integrity against false information. There are laws against

saying or writing things to incite hatred against others because of their

culture, ethnicity or background. Freedom of speech is not an excuse to

harm others.

This does not seem a particularly offensive goal. But is it free speech? Voltaire, whether he actually spoke the words noted earlier or not, would say no; but it is something closer to Stanley Fish’s understanding of free speech.

The left was quick to come to Professor Churchill’s defense. Rightly so. Academic freedom is an important tenet of the tertiary sector and with the global rise of conservatism in recent years, it appears to be under threat.

But the left was also quick to protest the Westboro Baptist Church’s abhorrent and nasty practice of picketing the funerals of American soldiers. Their hate-filled anti-gay tactics include displaying placards proclaiming ‘God Hates Fags’, ‘God Hates America’ and ‘Thank God For IEDs’. A line has been drawn in the sand by many Americans.

Earlier this year the United States Supreme Court upheld the First Amendment right of Westboro to picket military funerals, deciding that they could not be held liable for money damages sought by the family of slain Marine, Lance Corporal Matthew Snyder, whose funeral was picketed by Westoboro. And why wouldn’t it? Americans of all political persuasions should rejoice in the Supreme Court decision. The intent of the U.S. Bill of Rights has been upheld and affirmed.

The Supreme Court ruled it constituted lawful and peaceful commentary on political issues under the First Amendment.

Chief Justice John Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”

The lone dissenting voice, Justice Samuel Alito, wrote: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case … In this case, respondents brutally attacked Matthew Snyder and this attack, which was almost certain to inflict injury, was central to respondent’s well-practices strategy for attracting public attention.”

Margie Phelps, a member of the Westboro Baptist Church and its lawyer in the case, said of the verdict: “The only surprise is that Justice Alito did not feel compelled to follow his oath. We read the law. We follow the law. The only way for a different ruling is to shred the First Amendment.”

In On Liberty (1859) John Stuart Mill argued that “… there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” But Mill also introduced the ‘harm principle’, placing the following limitation on free expression: “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.” Some commentators take this a step or two further, suggesting some forms of expression can be legitimately prohibited by law because their ability to offend is so great. So, to illustrate, in Germany, Austria, Belgium, Bosnia-Herzegovina, Czech Republic, France, Hungary, Israel, Lichtenstein, Luxembourg, The Netherlands, Poland, Portugal, Romania, Spain and Switzerland, it is a criminal offense to publicly deny the Holocaust or to deny acts of genocide have occurred.

As Australia continues to debate the need and worthiness of a Bill of Rights, we should stop and consider for a moment whether we really want and need the kind of free speech Voltaire may or may not have advocated, with the right of repugnant people to speak their minds alongside the voices of those we agree with, or whether we are prepared to accept the our “trigger point” works to the betterment of society.

Australia, like America, may once have been a tolerant nation. But not any longer. Both sides of politics in Australia over the past decades have seen to that. The kind of free speech wrongly attributed to Voltaire is idealistic, even quaint, but it is no longer – if it ever was – workable in Australia’s less-than-tolerant society.

Remaining free of the constraints of a Bill of Rights might be our saving grace.


POSTSCRIPT – Thursday, 29 September 2011

Yesterday the Federal Court in Melbourne found against ‘journalist’ Andrew Bolt in a case that has become as much about defining quality journalism as it has about free speech. You can read various accounts of the case here, here and here. I won’t delve into the details of the case itself, you can read about it for yourself. Except to say, the decision in this case, in my opinion, is not about attempts to silence free speech, it is about – as I highlight above – drawing a line in the sand and saying, “For the benefit of society, that is going too far.” It is something humans have done since long before Gutenberg’s printing press and it is something we will continue to do. I believe that to be a good thing. As much as I am yet to read anything written by Andrew Bolt that I find palatable, I believe he has the right to freely express it. What he does not have a right to do is distort the truth, lie and pluck ‘facts’ out of the ether in the name of ‘journalism’. Nor should he. Free speech? By all means. Free speech which includes defaming and lying about someone? Never.

If Australia had a Bill of Rights, I believe people like Andrew Bolt, who peddles in little more than shock and fear opinion (as opposed to balanced and productive journalism) would be allowed to continue to offend. And offensive is what he is more often than not. The Federal Court, I would argue, has presented an articulate argument against a Bill of Rights in Australia. Yes, that’s my left-leaning sensibilities coming to the fore. But it’s my blog. Go write your own.

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