Freedom Of Speech
And Expression
From Human Rights In Australia by LJM Cooray (1985)

6.1 Importance Of Freedom Of Speech And Expression
The importance of free speech as a basic and valuable characteristic of western society cannot be underestimated. As well as emphasizing the value of free speech, it is proposed to make an evaluation of some of the traditional restrictions on what may be freely said or published, such as the defamation laws, contempt of court, national security and so on. The approach is one which makes the case for free speech, since the world is now a place where people's unfettered freedoms are by and large in retreat. One of the difficulties inherent in discussing freedom of speech is that it contains what libertarians often describe as the paradox of freedom. The classical exposition of this paradox was described by John Stuart Mill in his essayOn Liberty in Utilitarianism Etc: (London, 1910) p 83

". . . there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it might be considered."

In other words, unless we ensure to the enemies of freedom the liberties which they are keen to abuse, then we deny the essence of what we ultimately stand for and are therefore no better than those to whom we are opposed. Or as Voltaire has been paraphrased,

"I disapprove of what you say, but I will defend to the death your right to say it."

On a more practical plane, freedom of speech serves many functions. One of its most important functions is that decision-making at all levels is preceded by discussion and consideration of a representative range of views. A decision made after adequate consultation is likely to be a better one which less imperfectly mirrors the opinions, interests and needs of all concerned, than a decision taken with little or no consultation. Thus freedom of speech is important at all levels in society. Yet it is most important for government. A government which does not know what the people feel and think is in a dangerous position. The government that muzzles free speech runs a risk of destroying the creative instincts of its people.

Freedom of speech is also important to governments because when criticisms of a government are freely voiced, the government has the opportunity to respond to answer unfair comments and criticisms about its actions. On the other hand, when freedom of speech is restricted, rumours, unfair criticisms, comments and downright falsehoods are circulated by word of mouth. These have a habit of spreading across the length and breadth of the country through conversation and surreptitiously circulated writings. The government is in no position to answer these views, because they are not publicly stated. It is in a government's interest to have criticisms in the public arena where it can answer its critics and correct its mistakes. The government generally has access to electronic and printing communication far in excess of individuals and groups. It is able to present its view only if the opposing views are in the open and known.

Finally, the freedom of speech is the single most important political right of citizens, although private property is required for its operation. See further chapter 8. Without free speech no political action is possible and no resistance to injustice and oppression is possible. Without free speech elections would have no meaning at all. Policies of contestants become known to the public and become responsive to public opinion only by virtue of free speech. Between elections the freely expressed opinions of citizens help restrain oppressive rule. Without this freedom it is futile to expect political freedom or consequently economic freedom. The sine qua non of a democratic society is the freedom of speech.

Freedom of speech involves toleration of a great deal of nonsense, and even of matters which are in bad taste. There are those, among them notably Justice Douglas of the American Supreme Court, who have argued for near absolute freedom of speech and against the restrictions based on many of the common exceptions. In Roth v US 354 US 476 (1957) a case about obscenity, Justice Douglas said in dissent:

"The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the Judge or jury thinks has an undesirable impact on thoughts but that is not shown to be part of unlawful action is drastically to curtail the First Amendment."

Similarly, in Australia, Robert Pullan has recently published a book (Guilty Secrets: Free Speech in Australia (North Ryde, 1984)) in which he finds not only the obscenity laws but also the defamation and sedition laws so repugnant, he would throw them all out. But while it is thought that even the most open-minded people would draw the line somewhere (child pornography) it must also be recognised that there is an increasing tendency to argue that views based merely on bad taste and offensiveness to particular groups should be censored. Yet bad taste, discrimination and mere offensiveness to individuals are not grounds for restricting free speech. They have to be accepted as an unavoidable by-product of the advantages of freedom of speech.

It must be realized that what constitutes bad taste or discrimination or offensiveness is to a very great extent subjective. The folly of the increasing practice, in recent times, of placing censorship powers in the hands of bureaucrats and tribunals is illustrated by the manner in which the works of authors like D H Lawrence were banned from sale. Even recently the Chief Commonwealth Film Censor banned a Brazilian film by Hector Babenco portraying the desperate hand-to-mouth existence of a Brazilian boy from being shown at the Sydney Film Festival on the grounds of child abuse, even though it was the first censoring since 1969 of a film entered for the Melbourne or Sydney Film Festivals. After an outcry from the directors of both Festivals, the ban was overruled by the Films Board of Review. The film, titled Pixote, was shown and voted the best film by the Film Festival subscribers.

Larger problems arise where some people call for groups such as National Action to be made illegal as tending to encourage racism. In a recent incident at a University, where National Action had set up some tables to distribute literature, tables were overturned and groups of students shouted against racism.

Those who attempt to resort to such tactics to stifle presentation of an opposing view give the impression that reason and logic are not on their side. Freedom of speech has as its necessary corollary the expression of a wide range of views, some of which of course will be unpalatable, or clearly wrong. But the alternative of placing the agenda for public discussion in the hands of paternalistic bureaucrats (who as human beings will be fallible and have subjective views and personal prejudices) whose rulings often cannot or can only with difficulty and cost be reviewed in the courts, is increasingly becoming the norm. It is an undesirable and unfortunate trend.

The attacks on Geoffrey Blainey are symptomatic of developing trends. History demonstrates that problems have arisen in multi-racial, multi-lingual and multi-religious societies. The Blainey view should be freely expressible as part of the public discussion about our immigration policy, along with any other views, without his being subjected to personal and vituperative abuse and threatened with violence. The process of public debate provides an opportunity for an evaluation of his views.

6.2 The Racial Discrimination Act Amendments
One of the thorniest issues that has arisen in recent times is that of the proposed amendments to the Racial Discrimination Act by the Human Rights Commission which would:

. . . make it unlawful for a person to publicly utter or publish words which, having regard to all the circumstances, are 'likely to result' in hatred, intolerance or violence against a person or group of persons, distinguished by race, colour, descent or national or ethnic origin. (emphasis added)

While some may find this a laudable weapon against racists, this is yet another serious restriction upon free speech. What the amendment really strikes at is hurtful speech or wounding words. For example, if somebody publicly said, "Aboriginals are just lazy drunks", it is likely that such a person could be prosecuted under the Act. Such a statement is a deplorable generalization, no more applicable to aboriginals than any other race or nationality. But why give the statement any more treatment than it deserves — simply to be ignored? Doubtless, many aboriginals may feel deeply hurt by such a comment. But what mature person expects to pass through life without having wounding words spoken to him or her?

Any sensible person can see that the statement reflects more upon the person who made it than it does on Australian aboriginals. Why should migrants or members of ethnic groups be protected from the slings and arrows of normal human living? Indeed, many traits of the various cultures may well deserve severe criticism for the sake of social discipline and national cohesion. For example, the aboriginal practice of organized infanticide or some of their customs relating to treatment of women, may legitimately be strongly criticised. Have not other cultures been criticised in the past for their sanitary habits which were a danger to public health? Members of these communities and groups may be deeply offended or hurt by such criticisms. But should the Commonwealth Parliament be legislating to forbid this simply because it arouses ill feeling?

Further, should we not be free to criticise white South African members of the Australian community who are unrepentant about apartheid policies maintained in their home country, irrespective of whether it causes intolerance of their community in Australia? It is ludicrous that such a condemnation of a racist policy would in fact be a breach of the Racial Discrimination Act.

Laws already exist to adequately deal with any physical attacks which are made by one group or person against another, whether of racist origin or not and to deal with incitement to violence. New laws which enable prosecution at a much earlier time are both unnecessary and exceedingly vague (and therefore potentially dangerous) in their operation. Indeed, the freedom to make such statements is an important safety valve which society needs in order to lessen the likelihood of resort to physical aggression. Tensions of a racial nature are bound to develop in all walks of life and should not be suppressed. A heated public debate does not necessarily lead to, and is far more desirable than violence.

Those in Australia who are proponents of the fashionable term, Multiculturalism, mostly politicians, journalists and certain segments of academia (very few of whom are actually migrants), make strange bedfellows with those who promote the latest version of the Racial Discrimination Act. Indeed, it seems that most of these people wear two night-caps. They cannot be ignorant of what Italians feel about Greeks, Ukrainians about Russians, Chinese about Vietnamese, Turks about Armenians, Indians about Pakistanis, Nigerians about Ghanians, or Croats about Slavs — and vice versa.

Australia's attitude to all this should be that we welcome immigrants from any country, with the stern proviso that their national politics be firmly left at home. But the transformation of theory into reality may at times be more aptly described as metamorphosis, except that this time the butterfly can be uglier than the caterpillar. One simply cannot legislate to prevent people from holding what may be racist attitudes, especially migrants who could have fought against each other in the World Wars. The best we can do is to educate and attempt to change attitudes and let time heal these wounds as new generations of Australian-born children leave these views behind. Certainly legislating to make these thoughts inexpressible is likely only to harden people's feelings and prolong the whole process. Professor Lauchlan Chipman has this to say (Quadrant May 1984, p 24) about the amendment (quoted above) proposed by the Human Rights Commission:

It is not excessively dramatic to say that not since the Second World War have we seen proposals for limiting freedom of expression as restrictive as some that are currently under discussion. All of them derive from the progressives of the new class and more importantly all of them are put forward in the name of protection of the innocent from hurtful speech. At first, the proposed amendment might seem unexceptionable; something that only racists or people insensitive to the hurt caused by racists would oppose. And indeed, as is so often the case, people who oppose this amendment in good faith will be called racists. Regular readers of Quadrant will recall that the present Commonwealth Attorney General was, as Shadow Attorney, not averse to using parliamentary privilege to describe Quadrant contributors who criticised multiculturalism as "sophisticated" and "more dangerous" racists. Late last year the Evans speech was cited at a multiculturalism conference in Adelaide as proof that this writer "hated ethnics").

One thing that is particularly worrying about the Human Rights Commission's proposed amendment is that it has deliberately chosen (it considered the alternative and rejected it) to construct the offence in terms of objective consequence rather than intended effect, in a way that is modelled on the defamation laws of most States. Thus if a newspaper were to report, in good faith, claims about the comparative alcoholism rates among Aborigines and non-Aboriginal Australians... and as a result a minority of the readers were reinforced in an intolerant attitude to Aborigines, an offence may have been committed. Now we will be hastily reassured that the proposed legislative amendment is not intended to extend to "bona fide public discussions", scientific reports, or works of art (the latter exemption no doubt intended to save Wagner and Irish jokes).

It is difficult to imagine anything more ludicrous than the Human Rights Commission making judgements about whether something is a work of art, whether a public discussion is bona fide, or whether a report is genuinely scientific. It is not just ludicrous. It reeks of all of the classical dangers of censorship. Moreover it is doubtful if it will achieve anything in relation to its declared and legitimate objective of diminishing racial tensions. (Comparative English legislation actually correlates with a rise in overt racist activity, and in the proportion of racist smut which is anonymous.) It may succeed in having Adolf Hitler's Mein Kampf banned in Australia, unless it qualifies as a work of art.

6.3 Defamation
Free speech is simply what is left when many other things are taken out. One of those things is the effect of defamation laws, which seek to protect an individual's reputation. The central problem is to reconcile this purpose with the competing demands of free speech or to put the problem another way (through the eyes of a journalist):

"It is really about how far individuals in society should be protected against what they perceive as the excessive power of those — like the press — who can command a large audience. In practice, defamation law is about the ability of the media to expose an individual to the public on a grand scale".

In a free society there is a strong presumption that people should be able to speak freely, especially in relation to public issues and an individual's behaviour in relation to these issues. However, the reality of potential for abuse of this freedom remains and so with it the need for defamation laws.

In an action for defamation, there has for a long time been the defence of truthfulness but the onus is on the defence (the defamer) to prove it. Beevis v Dawson (1957) 1 QB 195. The truth of all material statements contained in the libel must be proven.

There is also the legal defence of "absolute privilege". In simple language this means that whatever is said (however defamatory) is "absolutely privileged" and no action can be maintained. "Absolute privilege" attaches to whatever is said in Parliament or during evidence given in the course of judicial proceedings. There is also the defence of "qualified privileged" which is where an action cannot be maintained unless there is malice, such as in the reporting by the media of matters in respect of which "absolute privilege" exists. Privilege is often justified on the ground that

"fear of liability might induce caution destructive of the frankness that the public has a right to expect."

But, adds FlemingP

"unfortunately, demagogues who abuse the privilege are rarely brought to book by their own Chamber".— J G Fleming, Law of Torts, (Sydney, 1977) p 549.

It is in view of these often extreme abuses of Parliamentary Privilege that there is good reason for exposing parliamentarians to the same liability as anyone else. Truth of the statements should be a complete defence. Perhaps a balance could be struck that those with privilege not carry the burden of proof. Rather, they would be liable if the plaintiff proved the ntruthfulness of the statement.

In the United States a person holding political or public office has no right to sue for defamation. The reason given is that a person who enters public office, unlike the private citizen, should come under unrestrained public scrutiny. This is considered essential to the workings of the US democracy. Thus the law of defamation offers no refuge to the holder of public office. There is an important lesson here for Australia.

However, last year the Attorney General proposed new Uniform Defamation Laws which would place much greater restrictions on freedom of speech than do Australia's already restrictive laws. The most severe aspect was that truth would not be a sufficient defence, as it is in Victoria, nor truth and public interest, as it is in New South Wales; rather, truth and public benefit would have to be proved. Of course, none of these new restrictions applied to Parliamentarians or others with Absolute Privilege.

In view of the criticisms which the draft Bill received from the media, it now appears to have been put to one side. While there may be a need to codify the law of defamation which at present is in a very disorganised state, it should not be taken as an opportunity to impose further constraints on freedom of speech. In the following extract Professor Lauchlan Chipman (Quadrant, May, 1984 p 25) has spelt out the ominous nature of the reforms proposed to the law of defamation:

The proposed amendment to the Racial Discrimination Act is not the only proposal to restrict freedom of speech associated with the present government A proposed Uniform Defamation Law, floated last year, has been withdrawn in the light of the belting it received from the media, but it has not been scrapped. Much publicity has already been given to many of its provisions which, if implemented, would have given Australia, already suffering an international reputation for restrictive defamation laws, the most restrictive defamation laws in the English speaking world. The draft legislation which is now in limbo was originally presented in a curiously disjunctive form. Parliamentarians would have been free to pick and choose which provisions of varying degree of illiberality they would seek to impose uniformly throughout Australia. Among the options was one that would give the dead a right to sue (through their living representative) for up to three years, thus finally ending the career of the honest obituary writer. Moreover truth would not be a sufficient defence, as it is in Victoria, nor truth and public interest, as in New South Wales; rather, under one proposed option, truth and public benefit would have to be proved.

This last idea is a complete reversal of the fundamental principle of freedom of expression as set out by John Stuart Mill and quoted at the beginning of this article. The traditional principle is one which presumed the right to express oneself as one wishes unless some substantial harm to innocent people will result. Under the proposed "reform" in one of the draft options in the uniform Defamation Law the presumption would be that you should not make statements about identifiable living or recently dead people unless some public good will be furthered. Many people have made useful and sound criticisms of this proposed legislation, and yet I think it has been insufficiently realized how profoundly questionable are the principles implicit in it.

What the proposed amendment to the Racial Discrimination Act and the more restrictive proposed provisions of the uniform Defamation law have in common is a "wetter" view than Mill would ever have countenanced as to what constitutes a sufficient degree of harm to innocent people, or indeed how "innocent" they need be, to justify restricting freedom of expression. At the time Mill wrote, privacy — the value which the uniform Defamation law is really attempting to protect — was not seen as an important competitor. Indeed it was not until later in the nineteenth century that the American Judge Cooley and later Judges Warren and Brandeis, writing in the Harvard Law Review made privacy — what Judge Cooley had called "the right to be let alone" — an intellectual issue.

Mill's famous principle that it is only the prevention of harm to others which justifies the state in restricting our voluntary conduct — a principle derived from Kant — has always caused practical problems because of the vagueness of the notion of harm. Some have attempted to give a "Millian" justification for the proposed anti-racist and defamation laws under discussion on the ground that the restrictions they introduce are motivated by a desire to prevent harm; the deep feeling of hurt in having one's racial ancestry denigrated, or the dignity and embarrassment of having what one thought were private shames publicised. But plainly this is not good enough. As Mill himself once wrote:

..it must by no means be supposed, because damage, or probability of damage, to the interests of others, can alone justify the interference of society, that therefore it always does justify such interference. In many cases, an individual, in pursuing a legitimate object, necessarily and therefore legitimately causes pain or loss to others, or intercepts a good which they had a reasonable hope of obtaining. — John Stuart Mill, On Liberty in Utilitarianism Etc (London, 1910) p 75.

The issue is thus not whether some people are profoundly hurt by what others are now permitted to say and write freely, but rather whether this hurt is so great as to justify curtailing by law the present right to do things which may produce it. The issue is not whether people engage in ethnic defamation and outrageous intrusions of privacy. It is whether, and if so in what circumstances, the real hurt that such people can and do sometimes produce is a sufficiently great evil to justify further curtailing that freedom of expression for which Voltaire, Milton, and Mill spoke so eloquently and passionately. I do not believe it is. Those who take the view I have just endorsed will of course, be called fallaciously racists or friends of racists, and disrespecters of privacy. It has not changed since that time of Mill who, in the same essay, wrote:

The worst offence . . . which can be committed by a polemic is to stigmatise those who hold the contrary opinion as bad and immoral men. To calumny of this sort, those who hold any unpopular opinion are peculiarly exposed, because they are in general few and uninfluential, and nobody but themselves feels much interest in seeing justice done them; ... unmeasured vituperation employed on the side of the prevailing opinion really does deter people from professing contrary opinions, and from listening to those who express them.

6.4 The New Censorship
The issue of the new censorship would not be complete without note being taken of the new guidelines which have been circulated by the Federation of Australian University Staff Associations (FAUSA) titled Towards Non-Sexist Language. These guidelines have the very objective which is set out for Newspeak in the appendix to Orwell's Nineteen Eighty Four. The objective is to make certain thoughts (sexist thoughts and attitudes) inexpressible. Needless to say the guidelines are ridiculous in their justification, and inaccurate — embarrassingly so in an organization which claims to represent the interests of those in our highest institutions of learning — in their substantial linguistic claims. But what is more important is that in several Australian universities committees have been established to consider recommendations, inter alia, that compliance with the guidelines in university lectures, tutorials, administrative documents and research publications, be university policy. While serious scholars will certainly ignore the positive recommendations which are predictable given the sorts of people who gravitate to such committees, the real indictment of the quality of our tertiary academic community is that there are sections within it who would take it seriously at all.

What sort of attitude to scholarship is held by someone who would actually recommend, to take a real example, that in lectures, tutorials, or research publications about Aristotle, he should not in future be quoted directly as saying "Man is a political animal", but rather, as university policy, should be paraphrased as saying that people are naturally political (or other non-sexist words to that effect)? It is difficult to take a principled stand on university autonomy against attacks from without, when it is being wilfully subverted from within by people who, in the unlikely event that they have read Orwell's Nineteen Eighty Four, have interpreted his discussion of Newspeak as a set of useful positive recommendations. When a satirist provides an archetype for a social policy within our institutions of higher learning, retreat and withdrawal are very tempting.

During 1983 several proposals were floated to re-write school textbooks and revise school curricula so that men and women are portrayed as having socially interchangeable roles. A new organisation of Western Australian school teachers wants history texts rewritten to write out wars and war heroes and write in peace and peace heroes. More significant is the actual culling of certain school and municipal libraries, under the direction of committees filled with moral zeal, of racist, sexist, and militarist works. In New South Wales, former federal Commissioner for Community Relations and former Immigration Minister in the Whitlam Labor Government Al Grasby, is reported to have called for the removal of Clive of India from New South Wales school libraries on the ground that it is racist.

The argument given for removing these books from school and municipal libraries could be extended to removing them from all libraries. The arguments are essentially those offered by Plato in Book X of The Republic. Indeed the parallels between Plato's Republic, Oceania in Nineteen Eighty Four and the new illiberalism in Australia are striking. In all cases a publicly educated elite, sure in its values but untrusting of the rest of the community to quickly endorse or understand its values, adopts a paternalistic (The Republic) or Big Brotherly (Nineteen Eighty Four) protective role. Plato's Guardians, and the new moralists of the new class in Australia, who are associating themselves with such very worrying agencies as the Commonwealth Human Rights Commission (itself an interesting specimen of Newspeak terminology, of which more below), various Anti-Discrimination and Equal Opportunity Boards, and a number of other advisory boards and ad hoc panels with direct access to Attorneys-General and other political leaders, have a remarkable amount in common. Like the Party in Nineteen Eighty Four under the sternly protective but nonetheless sibling image of Big Brother, these people believe that not only do they know the truth on important matters of social order, but they know it with a certainty which justifies them in legislating for the implementation of this certain truth by whatever measures are necessary. Like Plato's Guardians, they fear that the lower classes (Orwell's proles or quite simply "ordinary people") will be too lethargic, weak-minded (the effects of prior "structural social conditioning") or too weak-willed to achieve voluntarily the rapid implementation of these selectively revealed goods.

6.5 Relative Freedom Of Speech
It is well to remember that in spite of the valid criticisms which can be made of the way western societies have allowed governments to place restrictions upon freedom of speech, it virtually pales into insignificance when a comparison is made with the countries which lie between the Elbe and the China Sea. One vivid example is the care which the leader of the Polish trade union Solidarity, Lech Walesa, has had to employ in any "statement" which he makes about the problems confronting that country. It is all the more of concern because it seems clear that it is only the threat of criticism from the international media which has prevented this episode from being dealt with in the usual way. A similar problem has been shown recently in the USSR by the controversy surrounding the health of the Soviet dissident, Sakharov.

This association of restrictions with socialism and freedom with capitalism, is no matter of chance. Capitalism is, with all its faults, a pluralist system. Power within it is dispersed and various, and it is this pluralism which is the necessary though not sufficient condition for freedom's existence and continuance. Socialism, on the other hand, is a highly centralized system, with political and economic power concentrated in very few hands. Freedom of speech in the Socialist bloc is all the more restricted where all causes must bend to the Communist doctrine.

6.6 Conclusions
A common justification for the restrictions upon the liberty of individuals is the supposedly overriding interests of efficient government and the public benefit. It is conveniently overlooked that what constitutes "efficient government" and "public benefit" are subjective concepts, the interpretation of which will be in the hands of legislators, bureaucrats and judges with human failings and feelings, lack of vision, imperfect knowledge and understanding, subjective views and personal prejudices. However, while public benefit is an important factor, the test for allowing further restrictions upon free speech should strive to be somewhat more stringent. Legal restraints upon individual freedom of speech should only be tolerated where they are absolutely necessary to prevent infliction of actual harm or to secure the liberties of others. A more or less remote possibility that someone will be harmed or unbased claims that the stability of society will be undermined is not sufficient justification for legal prohibition.

A balance must be struck between the ability of individuals to be unrestricted in the free expression of thoughts and ideas, and the need to ensure that governments are able to efficiently carry out their function of administration, law and order, and preserving the rights of individuals vis-a-vis each other.