The freedom and fetter of the right of free speech

When a Greek migrant lad whom I knew at primary school was called a “stinking wog”, his defiant response to his tormentor was, “Bricks and stones may break my bones but names will never harm me.” It was not until I became a lawyer many years later that I discovered how wrong he was about the harm part of that response.

The first record of that phrase, using the word “harm”, appeared in an African Methodist Church publication in 1862 where it was referred to as an “old adage”. Ten years later the same phrase appeared in a children’s book of helpful advice but with “harm” substituted by the word “hurt”.

Being harmed or only hurt by what someone has said about you is an important distinction in the law in relation to the right of free speech, not only in respect of defamation, which has been around in English law since the 1500s and in Australia since at least 1828, but also under the multitude of human rights and anti-discrimination laws that have been introduced pursuant to a number of international UN declarations made over the past sixty years.

Many of the cases brought under Australian law give rise to controversy over the right of free speech and to the degree that is thought reasonable and justified in restricting that right in the interests of public good.

In regard to defamation law for example, the federal Treasurer, Joe Hockey, was recently awarded damages against the Fairfax Media for a headline that read: “Treasurer For Sale”. The court found it to be defamatory of his personal and political reputation. The Press Council is upset and has called for an urgent review of defamation laws.

In regard to human rights law, the federal Attorney-General, Senator George Brandis, caused an uproar in March 2014 during an heated discussion in the Senate about free speech and his (since aborted) attempt to amend the oppressive section 18C of the Racial Discrimination Act 1975, when he declared that “people do have the right to be bigots”.

So where does the line between harm and hurt in the right of free speech abide?

The answer is not readily discernible. The problem is twofold: Firstly, what is acceptable and what is not defies consensus of the wide diversity of views in the public perspective. Next, it follows that legislation restricting free speech and providing ‘rules’ based on some generalised notion of community standards does not sit well for every case in every situation that needs to be judged.  

Words that might only hurt the feelings of some persons who are capable of ‘brushing off’, or adequately dealing with, such verbal or written attacks, may well harm others who, in their particular situations, are at a disadvantage, feel threatened, are undermined and more vulnerable to personal and psychological harm.

Persistent attacks can also build hurt into harm. This is particularly so in respect of minors. Those of fragile sensibilities. Those who are susceptible to mental torment. Verbal bullying, internet abuse and intimidation leading to tragic outcomes.

Then again, freedom of expression involving insulting, humiliating, foul and bigoted language, whether directed at a person, or to that person’s religion, racial origin or cultural heritage, may be hurtful and offensive to those against whom it is said or written, yet in some contexts it may be well justified and needed to be said. 

Disapprove of it if you will, or defend to the death a person’s right to say it. But therein lies the rub; for what right or privilege does not come without responsibility and obligation?