Free speech: what it is and what it isn’t

Attorney-General George Brandis has no qualms about “shackling” free speech to protect property, hence his presence at a copyright forum this month, yet he rejects other constraints. AAP/Alan Porritt

Tim Wilson has finally taken up his post as Human Rights Commissioner after controversy about his appointment late last year. Many questioned the suitability of a candidate without relevant legal-administrative experience and a self-proclaimed “traditional” view of human rights. At issue here is Wilson’s supposedly classical conception of the rights of the citizen, built upon a certain understanding of the institution of private property.

This conception leads Wilson, along with federal Attorney-General George Brandis (who virtually hand-picked Wilson) to defend what he calls “traditional” free speech and in the process rail against section 18C of the Racial Discrimination Act.

Before looking at this legislation, it’s worthwhile setting out what’s at stake and reflecting on the meaning and import of free speech in democratic societies.

A history lesson

A. V. Dicey once defended the liberties of the English citizen by observing:

A man may with us be punished for a breach of law, but he can be punished for nothing else.

Dicey offered this in an essay on the meaning of the rule of law. It captures the classical libertarian notion of liberty, with which the rule of law is intimately connected, as something residual rather than positive. For Dicey and the classicists, freedom is the space left for every subject after the law has reached its limit.

In what way, then, does the common law afford citizens freedom of speech? After all, freedom of speech sounds rather more positive than residual. In some respects, it’s odd that neoliberals should insist on it at all, given that the classical notion of liberty is negative.

While it’s arguable that John Stuart Mill, one of the champions of free speech in the 19th century, was a classical liberal, Mill also supported worker-owned syndicates of the kind supported later by some Fabians, Marxists, socialists and anarcho-syndicalists. In any event, Dicey provided the strict and more theoretically precise sense of liberty.

Dicey’s conception, although far from perfect, is properly tethered to the rule of law (by definition, in fact). There’s something almost “unclassical” about free speech, if by “classical” we have in mind 19th century aristocrats-cum-industrialists who overwhelmingly saw liberty through the prism of law and contract.

The common law: is speech special?

Now, at the risk of inviting some opprobrium, I would like to suggest what everybody already knows full well. There really is no such thing as free speech, if this just means the right to say what one wants. Even as an ideal to which our laws should aspire, it proceeds from an understanding of liberty absent restraint, which is impossible.

There is no freedom without law. One might as well go around saying that there is such a thing as the “freedom of behaviour”. Have you ever heard classical liberals campaigning passionately for “freedom of behaviour”?

There are laws, and then there’s the area left for the individual after the law’s reach is fully extended.

There’s no freedom of behaviour, or freedom to swing one’s arm, or freedom to move one’s elbow. There’s the right for someone not to be struck in the face by a swinging arm, and only after that, and in that context, the right for a person to swing their arm.

Defending the right to free speech is in some ways just as strange as defending the freedom of behaviour. Why is speech special?

Actually, speech and action are not as different as they appear. Crying “fire” in a crowded theatre when there’s no fire is more like a speech-act than plain talking. Telling someone their mother has just been run over by a bus when it isn’t true, if it causes mental harm to the hearer, is better understood as an act causing harm rather than an utterance. It is treated as such by the law.

Telling someone you’ll beat them to a pulp in a menacing and predatory tone may well constitute an assault, even if no punches are thrown, or were intended to be. An extremist cleric preaching suicide missions and violence against unbelievers would probably fairly be considered guilty of sedition. Speech can be deadly. Why start from the presumption that it isn’t?

The law of defamation and misrepresentation protect reputation and financial interest over the right of free speech. Copyright violation and breaches of confidence are further examples where speech is not free.

Protection from harm

What brings these cases together isn’t the unifying concept of free speech, or even private property, but the concept that Mill brought into focus in his essay On Liberty – that is, the occasioning of harm to others. This is where the critical discussion of free speech laws inevitably hovers.

How broadly do we construe this notion of harm? To mean only clear and direct dangers (as Mill would have had it)? Or as potentially extending to causing offence among a racial minority (as the legal philosopher Joel Feinberg argued it might)?

Whatever your answer, the presumption that somehow speech is special gets us nowhere. It is misleading. It is the false premise in so much of what passes for debate about the right of individuals to believe what they want and to express their beliefs.

We want all our freedoms maximised. For any proposed law, we should be asking about the cost to freedom, per se. If the infringement of our freedom is urged in the name of preventing some questionable kind of harm (like harm to “national security” or “sovereignty”), it’s the freedom lost that needs to be weighed in the balance, regardless of whether that freedom relates to words or deeds.

Too often free speech is little more than a slogan, which the enemies of freedom use to advance the interests of the rich and powerful against the disenfranchised. If we must have slogans, what we need is a better slogan to describe the ideal/reality adverted to in the phrase “free speech”.

Tim Wilson and other ‘free speech’ advocates are less consistent than they like to think. AAP/Supplied by Institute of Public Affairs

And that is, obviously enough, freedom of opinion (the freedom to express one’s opinions and beliefs). It is this freedom that is recognised and protected under international law (such as Article 19 of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights).

Perhaps even opinions, if expressed a certain way, may lead to clear and present danger. But these cases are extremely rare. It is probably just because the expression of an opinion or belief is so unlikely to lead to harm that we take the expression of opinion to be fundamental and non-negotiable.

Racial discrimination

Judging by Brandis’ recent attempts to “protect” free speech, and the brief he’s given to the incoming Human Rights Commissioner to prosecute the case against Section 18C, these obvious facts about free speech seem not to be getting through.

The maligned Section 18C doesn’t touch upon the expression of opinions or beliefs. It fastens upon acts or communications that offend, insult, humiliate or intimidate another group of people on racial grounds. And as Section 18D makes clear, it doesn’t prohibit even this where the communication is made in good faith and, for instance, where it is an accurate report in the public interest, or is otherwise a belief genuinely held.

It may be that Section 18C goes too far. There are certainly problems with the formulation of Section 18D (of a largely technical kind). But couching concerns about these provisions in the treasured argot of free speech as a way of justifying their outright repeal is to betray little genuine concern for human rights.

Someone concerned with human rights here would acknowledge the real issue posed by Section 18C, which is whether the right to offend and insult should be given priority over the right of members of an ethnic community to live free from racially inspired offences and insults.

It’s this issue - about the nature of the harm caused, and whether the blow to freedom is too high a price to pay for eradicating this particular vice – rather than questions of free speech in the abstract, that is decisive.

And once you factor in that Section 18D attempts to safeguard the free expression of genuinely held beliefs, you appreciate that these provisions don’t actually seek to place fetters on free speech (defined properly as the freedom of opinion). Cleaning up Section 18D must be a matter of making it work better in achieving the objectives of Section 18C. Repealing the provisions altogether is just a way of ignoring the real issue they pose under cover of whitewash and cant.

The values underpinning Section 18C, social cohesion, civility and respect, are clearly important conditions of stable social living. They’re intangible, perhaps, but not much more than Ed Snowden’s “harm” to state relations. Wilson acquiesced in Snowden’s criminality last year (although he softened his stance when interviewed last week on ABC’s Lateline).

Of course, arguments in these matters can go both ways. Perhaps respect and social grace should be inculcated in non-legislative ways, left to chance, to the marketplace of ideas, so that those “with evil in their hearts” are ridiculed in turn for their racist taunts.

Yet the common law hasn’t left defamatory speech to chance. Nor assault, copyright, misrepresentation and breaches of confidence. Nor wilful injury occasioning mental harm. These cover an amazing variety of circumstances.

They can only barely be understood as cases involving the protection of property, which is why your notion of “property” ends up being highly abstract and elastic when you go down that road. None of these wrongs is new (even wilful injury began life in the halcyon days of the 19th century). And none necessarily involves anything more than speech for its physical commission.


Listen to the new Politics with Michelle Grattan podcast with guest Human Rights Commissioner Tim Wilson here.