Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

The freedom and fetter of the right of free speech

By John de Meyrick - posted Monday, 27 July 2015


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.

Advertisement

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.

Advertisement

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?

Should we defend free speech that erupts into violence on the streets? Should we suppress hateful opinion disguised as fair comment, good faith, genuine belief or public interest (as holocaust deniers David Irving, Ernst Zündel and Gerard Toben attest)?

As noted by the High Court, “The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion; freedom of opinion is (subject to necessary restrictions) a basic democratic right…”

Tensions have arisen in recent years in the subduction of freedom of expression with a view to creating a more tolerant, multi-cultural, open and inclusive society.

 To this end a category of (what is referred to as) “attitudinal law” has been introduced, pursuant to a range of UN declarations, whereby the federal government and all of the states and territories now have laws, administered by a range of human rights and anti-discrimination commissions, which are designed to correct, ‘educate’ and, if necessary, to punish those who transgress the ‘rules’ of (what is now generally referred to as) “political correctness”.

Although some see these laws as suppressive and stifling of free speech and are looked upon as a form of “social engineering”, they have done much to make people aware of the importance of human rights and to sensitise the public to the harm that can be caused by thoughtless, disrespectful and intolerant attitudes and conduct towards others whose way of life, beliefs or personal characteristics and circumstances do not match their own.

These laws, as they relate to freedom of expression, began with the Universal Declaration of Human Rights in 1948. Although far from having universal acceptance (being rejected mainly by Muslim and non-democratic countries), that document states in article 19 –

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

That article is countervailed by article 29(2) which provides that –

In the exercise of [one’s] rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose  of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

But such well-meaning declarations say little about where the critical point of balance between freedom of expression and its necessary restraint should sit upon the fulcrum of legal authority. Indeed internationally, there are as many different perceptions of “such limitations” of free speech as there are countries that have adopted the Declaration.

One thing is clear: the point of balance in matters of free speech remains contentious as it shifts with the changing values, attitudes and standards of acceptable conduct within communities over time.  It is not easily addressed by static legislation. Nor is it readily judged by inflexible ‘rules’.

The slender tightrope of tolerance and respect on which we all must balance to avoid offence, requires acute awareness of mind whether or not one harbours the slightest degree of ill-will towards others. For a badly-worded phrase, a poorly related joke or anecdote, a facial expression that is wrongly made, or an unintended slip of the tongue that suggests duplicity of meaning, can instantly damn you as a bigot.

Essentially though, the law is not a substitute for education. The law may influence public attitudes and conduct, but its role is to punish wrongs, not to fetter rights.

It is only when you do something, or say or write something, that actually or potentially harms others or incites, or is likely to incite, hatred and ill will towards others, that your democratic right of free speech should be curtailed by law.

  1. Pages:
  2. 1
  3. 2
  4. All


Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

7 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

Other articles by this Author

All articles by John de Meyrick

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Photo of John de Meyrick
Article Tools
Comment 7 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy