Freedom of Speech and its ‘Appropriate Limitations’

‘I detest what you say, but I will defend to the death your right to say it’
(Voltaire, as described by Beatrice Hall, 1906)

As epitomized by Voltaire’s attitude, tolerance for opposing viewpoints is a fundamental necessity for social and political participation, especially in a world increasingly connected through globalisation and technological advancement. These connections have changed the world, not always for the better; serious culture clashes have occurred and still more can be expected, where difference is seen as threatening. These threats have led a number of societies to implement restrictions on their citizens’ freedom of expression1, through strong defamation and vilification laws, and the application of censorship to a wide range of media. By highlighting these issues, it will be shown that censorship is inappropriate and ineffective, because it does not address the cause of the issues. The best way to develop our societies, foster community cohesion and tolerance is through education, and the  encouragement for all to participate in civic life, with the widest possible freedom of expression within the law.

Australia’s diversity has been increasing since the remnants of the ‘White Australia’ policy were removed, discarding the ‘Australian Settlement’ (Kelly, 2004; Stokes, 2004). With no imposed state language or religion, and no direct insistence on cultural integration, Australia is called home by a wide variety of people, from many cultures. However, diversity highlights differences between Australians, sometimes leading to violence, such as seen in Cronulla in 2005 (Kennedy & Murphy, 2005). It is events like these which serve to show the utmost importance of free expression. Without it, the opportunity to educate, dispel fear and encourage tolerance is lost. This is even acknowledged by the United Nations (UN).

The United Nations (UN) acknowledges the importance of free expression within the Universal Declaration of Human Rights (UDHR) Article 19 (United Nations, 1948)2. It sets out to enshrine the right to free expression for all, balanced by the responsibility to use it wisely. They recognise that this freedom is essential to many others; without the ability and willingness to speak out against the ‘prevailing trends’, democracy would not have come about, nor would many of our most important scientific discoveries. Democracy itself requires a commitment to freedom of expression; it requires the capacity for individuals and communities to inform others, particularly their politicians, of their views3 (see also Mill, 1859). However there is a perception that to ensure the security of social cohesion, restrictions on free expression are necessary. Recently, these restrictions have come to apply to the online environment.

From humble beginnings, the internet has grown to become the technology of our age, becoming a veritable marker of our society (Barker & Kelly, 2008). With near worldwide influence, the internet has developed its own ‘imagined communities’ (Anderson, 1991) within its virtual environment, and further supplements non‐virtual ones. The internet becomes more accessible worldwide, and grows in content every day. In Australia alone, the Australian Bureau of Statistics (ABS) informs that over eighty percent of Australians now have access to the internet at home (Australian Bureau of Statistics, 2008‐09); this is further amplified by the number of countries with figures similar to, or greater than Australia4. The internet exploits the growing globalisation trend, allowing all who access it the opportunity to connect and communicate with diverse communities of various interests.

However the internet has a dark side, too. The internet has seen a rise in criminal behaviour, along with less ‘savoury’ legal content. To combat these issues, particularly child pornography and material offending ‘standards of morality, decency and propriety’ (Department of the Attorney‐General, 2005), the Australian Government has announced an intention to apply the National Classification Code (Department of the Attorney‐General, 2005) to online content (Department of Broadband, 2011). While it is true that a number of countries implement a degree of censorship by removing or blocking illegal content5, the intentions of the Australian government go much further than other (Western) democratic states. They will apply a ‘blacklist’ to block material considered to fit the criteria for ‘Refused Classification’ material within the Code, and the Guidelines for the Classification of Films and Computer Games. These guidelines are sufficiently broad to include a great deal of content; applying this to the internet, both usergenerated and commercial content, will not only be costly and difficult to implement, it
will also be largely futile.

The ‘Clean Feed’ filter, as it is sometimes called, faces fundamental flaws from all sides; it will cost a great deal and still not do the job, as the material wanting to be blocked does not usually get transferred via webpages, and the avenues in which it does get distributed will not be ‘censored’. It will also block material that is not necessarily illegal, and be easily bypassed with only a little technical knowledge, easily found on the internet. Now, this of course may not itself cause concern – what is the problem with spending money spuriously? There are two fundamental problems with censorship of the internet.

Firstly, the purpose of the classification guidelines is to provide advice to the public. By applying the ‘clean feed’, there is a distinct possibility that the public, and particularly parents, will be less vigilant over their children’s online time, thinking that it is now somehow ‘safe’; however the majority of risks children face online will not be removed by the filter. There is also the fact that the money for the ‘filter’ could be better spent on real opportunities for combatting the online danger to children, through greater funding for finding and prosecuting the criminals behind these crimes.

The other issue with an acceptance of the ‘clean feed’ is that the content blocked will be ‘secret’, available only to very specific public servants. This is a fundamental breach of the freedom of speech, and places Australians in a position where they are in the dark to the true nature of censorship (Thompson, 2004). When other forms of media, such as books and films, are refused classification, indications of why they have been banned are provided, which affords the public to lobby for their release. With the proposed filter, there will be no visibility of reasoning, no way to get content released if inadvertent errors are made, and no opportunity for discussion on the constitution of the ‘standards of morality, decency and propriety’ they cite. The standards being applied to the code can also be questioned to their validity, noting how diverse Australian culture is. This limits the usefulness of a ‘one size fits all’
approach. Individuals and families are better placed, and have superior authority over their moral standards and children’s education, recognised even by the UDHR (See Articles 12, 19 & 26 in United Nations, 1948). The ability and opportunity to freely express issues in society are essential to the search for truth, and to the development of
potential. Our diversity provides a strong likelihood of mismatches between standards; this shows that “boundaries between acceptable and unacceptable speech are by definition ‘ideological’”(Post, as cited in Gelber, 2010), that is, based upon imposition of one person’s or group’s values on others. What may be highly offensive to one person
may be acceptable to another. This highlights another issue with broad and general application of restrictions to speech.

Australia has introduced broad based defamation and vilification laws. Unfortunately, the generality of these laws create unintended effects, including spurious lawsuits, and the ‘chilling’ of speech (Heinze, 2006) due to the inability to determine what is, and is not within the law. A recent example of this is on the internet forum ‘Whirlpool’. This website, one of the largest online forums in Australia, was recently targeted by a company for negative comments by anonymous users regarding their products (Staff writers, 2007). The case was discontinued; however events like this can break down communities, withhold valuable consumer information and serve to silence dissent. It could be argued that this was just a spurious case, and that we should be focused on damage caused by ‘hate speech’. Shouldn’t this be unlawful?

Within an apparently ‘civilised’ country, the normative expectation is for criticism to be mature and ‘appropriate’, not hostile. This is certainly worth encouraging, through praise for good ‘clean’ argumentation, or condemnation for hostile argumentation. However, while striving to improve the quality of speech is admirable, we should not
automatically discount opinions based on poor form. As noted by Summy (1998), many languages have deep‐seated attachments to metaphors which are violent and vitriolic (Summy, 1998). The use of strong language, rhetoric and metaphor can often be misconstrued. However, even if not misconstrued, it is impossible to force a ‘love thy neighbour’ approach. No external authority can dictate what citizens must love or hate, nor should they legislate against hatred. Outlawing ‘hate speech’ will not change opinion, since it does not address the root cause of the hatred, whether fear, bad experiences, or lack of education. In fact, it can do the opposite. It can breed
resentment, and drive opposition underground, removing the opportunity to ‘keep an eye on’ the lines of demarcation, potentially leading to violent outbursts. It is the threat, attempt or successful act which causes harm which is a crime, and it is this which should be punished. The answer to bad speech and ignorance is not silence ‐ it is rebutting it with good speech. Those with the freedom to speak are charged with a civic duty to enlighten these others with better views. Freedom of speech should not be limited on the basis of ‘hate speech’.

This however, is not a call for an immoderate, ‘anything goes’ attitude, or a call for ‘cultural relativity’. It is a call for Australians to unite under a shared culture of multiculturalism. It is a call for a standard independent of  ‘popularity’; rather than a top‐down approach that ‘x is wrong because we’ve made it so’. While it may be difficult
to find where the line is drawn, through the reasoning capacity all humans are capable of, and the capacity for free speech, the truth can be found. The truth is not always to be found with ourselves, or with our opponents; much of the time, it is somewhere in between. When the state decides on questions of truth, we have then moved from
democracy to tyranny. We must be prepared to re‐examine the standards; while it may be difficult to accept a changeable standard, societies are rigid or fixed, and so must be prepared to consider new options on receipt of new information. It is also a call for education, and a commitment to active participation in civic life.

Education is the key to solving many public issues. Discrimination, hate and fear of the ‘Other’ can be combatted through the education of each generation, and providing opportunities for widespread community participation. Through social and political debate, communities learn from each other; this can provide opportunities to dispel fears, and generate the tolerance that fosters mutual respect and social cohesion.

Tolerance is not neutrality ‐ taking the ‘middle ground’ on an issue; It is not meekly following orders for fear of being charged, or even moral or civic indifference to an issue not cared about. It requires much more; the courage to consider alternative opinions,
and the forbearance of opinions you don’t like. As Mill points out, no‐one is infallible (Mill, 1859); if we attempt to silence opinions because we don’t like them, use poorly worded or obnoxious language, or they show criticism (causing distress) to an individual or group, then we not only take from them, but we also lose opportunities for ourselves.

By having the courage to listen and understand opposing viewpoints, the opportunity is provided to understand both ourselves and others, to reconsider or concede positions, or to better develop arguments that demonstrate why the opposition is wrong. All sides are encouraged to engage in the debate and there is no silencing of objections; instead there is the encouragement to learn from each other, attempting to find common ground on which to compromise (see Habermas, in Gelber, 2010). Intolerance, on the other hand, rejects this; it dictates possibilities and peoples’ capacity for selfdetermination.

Conclusion

(Hu)Man’s capacity for self‐determination and reasoning can see social problems overcome without the need for censorship or limitations on free expression. Through discussion and debate, societies are provided with the opportunity to understand others, and develop ideas to improve themselves. There may never be clear delineation
between truth and falsity or morality and immorality; by allowing others to speak, and considering the value of their arguments, society is provided with the opportunity for critical reflection, heading towards the examined life Socrates (de Botton, 2000) hoped everyone would live. The outcomes of these debates may never bring everyone to one common opinion, nor should this be seen as necessary; societies are constantly evolving, and values, expectations and knowledge will change over time. For this reason, we should always be willing to consider the opinions of those we do not agree with; for by silencing them we lose opportunities for ourselves, and reject the diversity that defines us.

Bibliography

Australian Capital Television Pty Ltd and New South Wales v Commonwealth (1992a) HCA 45; 177 CLR 106.
Nationwide News Pty Ltd v Wills (1992b) HCA 46; 177 CLR 1.
Theophanous v Herald and Weekly Times Limited (1994) HCA 46; 182 CLR 104.
Anderson, B. (1991) Imagined Communities, London: Verso.
Australian Bureau of Statistics (2008‐09) ‘8146.0 ‐ Household Use of Information Technology, Australia ‘, available: http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/9B44779BD8AF6A9CCA25768D0
021EEC3/$File/81460_2008‐09.pdf.
Barker, J. & Kelly, S. (2008) ‘Technology and Nationalism’ in G. Herb & D. Kaplan, (eds.), Nations and Nationalism: A Global Historical Overview 1, Santa Barbara: ABC‐CLIO, 126‐136.
Beatrice Hall, E. (1906) The Friends of Voltaire, Smith Elder & Co.
de Botton, A. (2000) ‘Consolation for Unpopularity’ in The Consolations of Philosophy, London: Penguin Books, 3‐42.
Department of Broadband, C. a. t. D. E. (2011) ‘Cybersafety plan’, [online], available:
http://www.dbcde.gov.au/online_safety_and_security/cybersafety_plan [1 November 2011].
National Classification Code 2005 (Commonwealth of Australia), ss.
Gelber, K. (2010) ‘Freedom of political speech, hate speech and the argument from democracy: The
transformative contribution of capabilities theory’, Contemporary Political Theory, 9 (3), 304‐304‐324.
Heinze, E. (2006) ‘Viewpoint Absolutism and Hate Speech’, The Modem Law Review Limited 69 (4), 543‐582.
International Telecommunication Union (25/10/2011) ‘Information and Communication Technology
(ICT) Statistics’, [online], available: http://www.itu.int/ITU‐D/ict/facts/2011/index.html
Jordan, R. (2002) Free Speech and the Constitution, Research Note 42 of Department of the Parliamentary Library, Canberra.
Kelly, P. (2004) ‘Comment: the Australian settlement’, Australian Journal of Political Science, 39 (1), 23 ‐ 25.
Kennedy, L. & Murphy, D. (2005) ‘Racist furore as mobs riot’, The Age (theage.com.au), 12 December 2005, http://www.theage.com.au/news/national/racist‐furore‐as‐mobsriot/2005/12/11/1134235948497.html?page=2.
Mill, J. S. (1859) On Liberty, Everyman New York ed., 1992, New York: Random House.
Staff writers (2007) ‘2Clix sues Whirlpool founder’, [online], available:http://whirlpool.net.au/news/?id=1753 [12 Sep 2007].
Stokes, G. (2004) ‘The ‘Australian settlement’ and Australian political thought’, Australian Journal of Political Science, 39 (1), 5 ‐ 22.
Summy, R. (1998) ‘Nonviolent speech’, Peace Review, 10 (4), 573‐578.
Thompson, B. (2004) ‘Doubts over web filtering plans’, 11 June, 2004, http://news.bbc.co.uk/2/hi/technology/3797563.stm.
United Nations (1948) ‘Universal Declaration of Human Rights’, 60th Anniversary Ed, available:
http://www.un.org/events/humanrights/2007/hrphotos/declaration%20_eng.pdf.

1 Free expression and Free Speech are used interchangeably; however the former creates the impression of a
broader right, encompassing the latter.
2 While Australia is a signatory to this declaration, no government has introduced legislation to incorporate this
convention into Australian law. Jordan, R. (2002) Free Speech and the Constitution, Research Note 42 of
Department of the Parliamentary Library, Canberra..
3 This was recognised by the High Court of Australia in the early 1990’s through several legal cases, notably
Australian Capital Television Pty Ltd and New South Wales v Commonwealth (1992a) HCA 45; 177 CLR 106,
Nationwide News Pty Ltd v Wills (1992b) HCA 46; 177 CLR 1, Theophanous v Herald and Weekly Times Limited
(1994) HCA 46; 182 CLR 104.
4 This is not to say worldwide access is equally distributed – there is a recognised ‘digital divide’ between the
developed, and developing world. For more details, and world statistics, see International Telecommunication
Union (25/10/2011) ‘Information and Communication Technology (ICT) Statistics’, [online], available:
http://www.itu.int/ITU-D/ict/facts/2011/index.html
5 Canada and Great Britain are prominent examples. See http://www.cybertip.ca/app/en/about and Thompson,
B. (2004) ‘Doubts over web filtering plans’, 11 June, 2004, http://news.bbc.co.uk/2/hi/technology/3797563.stm.

Advertisements

All constructive criticism is welcome! What do you think? What could I do better? Reading suggestions are welcome too!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: