The freedom and fetter of the right of free speech

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.