Tuesday, March 29, 2011

How Free can Free Speech be?

Getting Free Speech Right. 
By Katharine Gelber. 
University of Queensland Press.215pp. 

It's easy to agree on the principal of Free Speech - until people start saying what they really think. Most will agree there have to be some limits to Free Speech, but few can agree upon where those limits should lie, or how they should be applied.

Katharine Gelber has been pursuing Free Speech, and its evil twin, Hate Speech, through the academic world of political science for well over a decade. Now an Associate Professor at the University of Queensland, she offers this survey of the complex status of freedom of speech in Australia. She points to flaws and inconsistencies in the way governments impose limits on various freedoms that Australians generally think they possess. She also identifies a wide disparity of opinions among Australians as to where Free Speech can, or should, be overridden by other political, social, cultural or moral values.

The book title proposes that we can “get it right”. I turned to the final chapter on How to Get It Right. Sadly, after so much study and explication, the author can only exhort us to try harder with “a more robust commitment to this fundamental freedom” that needs liberating from the strictures that our complacent political culture has allowed to impinge upon it.

Prof Gelber notes that the right to freedom of speech in Australia has been limited in various ways by federal, state and local governments. But the right itself has never been confirmed or defined by our High Court, nor does it appear in our Constitution. By contrast, the United States First Amendment to its Constitution expressly forbids any level of government from making any law that will curb freedom of speech, and successive US Supreme Courts have not only upheld this general right against government limitations, but have extended its ambit to cover many non-speech and non-political forms of expression.

Australia's record is not all bad. Gelber devotes a whole chapter to the repeated refusals of Australian parliaments to make it an offence to insult the Australian flag, despite the calls of nationalists to restrict that particular form of political expression. She also commends the ACT Government for its unique legislation to prevent corporations employing SLAPP writs (“Strategic Litigation Against Public Participation”) to stifle public protest against their commercial activities.

Gelber's case is that Australian political culture has been too ready to accept creeping erosion of the right to free speech in over-reaction to political exigencies. She gives particular attention to the many infringements upon personal liberties, including freedoms of expression, rushed through Australian parliaments in the name of the War on Terror, and never moderated since then. For example, it remains illegal for an academic to collect, for research purposes, any publication that might inspire a mentally impaired person to consider committing an act of terrorism.

Gelber's research indicates that Australians support free speech in principle, but rarely give it priority over other values such as security and social cohesion. Perhaps this is because few Australians have ever experienced the absence of free public expression, and we have sufficient trust in our democratic institutions to believe that if something becomes intolerable, we can change it.

The Free Speech issue is one aspect of the broader contradiction between two democratic values - freedom and equality. Gelber defines "Hate Speech" and vilification as being attacks by the empowered against the “weak and marginalized” in society. At one point she equates vilification with violence.  Doesn't this view contradict general free speech principles?

A civilized society will protect the weak against the strong, and institutionalized values should discourage abuse of power through "speech" as much as any other form of abuse. But the record on vilification laws and the politicised notion of “Hate Speech” seems to show that legal avenues of redress are of most value to the most organized, not to the genuinely weakest targets of abusive speech. Without careful calibration and adjudication, anti-vilification laws can themselves be abused to the same effect as SLAPP writs.

This book will be a worthy addition to political science reading lists, but should also find a readership among those who are interested in how we manage our ideals through our institutions of government.

Richard Thwaites values his democratic right to vilify the powerful on an almost daily basis.

Read the full review