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On the freeness of speech

By Don Aitkin - posted Monday, 4 April 2016

This essay has been prompted by some questions on an earlier post, and by the coincidence of material about free speech in the USA — or rather, the increasing lack of it. The First Amendment to the US Constitution states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Those who want Bills of Rights in our country usually want a version of that statement as one of the ‘rights’ to be protected in Australia. Section 116 of the Australian Constitution follows the First Amendment with respect to religion, but does not go on to provide for freedom of speech or of the press.

That First Amendment is, however, heavily qualified in practice. You would be in serious trouble if you relied on it in an American court to protect you if your freedom of speech had been used in connection with obscenity, fighting words, defamation, child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, solicitations to commit crimes and treason. You might win, and then again, you might very well not. Why? Because the freeness of ‘speech’ is not an absolute but a relative matter. It is more useful to be able to say that, for example, there is a wider freedom for speech today in the USA than there is in Australia (I think that is probably true), or that there was more real freedom of speech in Australia in the 19th century than there is now (I think also arguably true).

It doesn’t seem very helpful to me to say that ‘we need freedom of speech’ here, or that others think we do. I’ve written about that before. What sort of freedom is wanted? That would be my question. What do you want that you don’t have now? Let me give an example that has been talked about over the last few years — Section 18(c) of the Racial Discrimination Act. You may not, under that section of that Act, do or say something that is reasonably likely to offend, insult, humiliate or intimidate someone because of their race or ethnicity. Section 18d, which follows, contains exemptions which protect freedom of speech to some degree. These ensure that artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18C, providing they are said or done reasonably and in good faith. The Abbott Government wanted to get rid of 18(c) altogether, but eventually abandoned the attempt. It’s still there.


OK? You, the reader, might decide what you could say that would get you covered by (d) despite your words seeming to fall under (c). You might wonder whether being offended about anything actually warranted to full protection of Commonwealth law. After all, it is always up to us to decide whether or not we feel offended, whether or not we want to do anything about it, and what our response might be. And ‘offensive behaviour’ has been about for a long time. It is there in the common law, and policemen have often been found to feel offended when they have been called ‘mug copper’, and much worse. Some people find it offensive to be called ‘climate deniers’ when all they are doing is pointing to the inadequacies of popular theories. The Racial Discrimination Act is no help there. But why not? you might ask. Why don’t we have a much wider Act that covers all insulting or offending words? Think about it. I think it’s a minefield.

The point is, if you want real ‘freedom of speech’ you have to decide what it is you want to be able to say, and to whom, and where, that you cannot do today without fear of legal consequences. That is tricky stuff, and it is tricky in the USA, too (see above), where there is an apparent  Right to freedom of speech. When we want to add, change or remove a law we do not start off, ever, with a clean slate. Everything else is already there — an existing population, precedent, custom, history, current values, old values, and so on. What we want to do has to be fitted in to all that, and doing that neatly and effectively is difficult. Ask any politician. If we were somehow to start again, that might be different.

And somebody has had a go at just that. John Rawls, a philosopher at Harvard, published A Theory of Justice in 1971. It is another attempt at a social contract, but it has a novel wrinkle or two. Suppose, Rawls says, you are designing the rules that will govern a new society. You really will have a clean slate. You can design it how you like, and you will then live in it — but, before you do, you will be reborn as a new person, and you will have no control over what sex you are, your ethnic origin, your level of intelligence, the circumstance of your family, or anything else that is relevant to success in a human society. How would you then plan for the ground rules of the new society?

Rawls argues that rational people in such a situation would choose as much equality as possible consistent with as much liberty as possible, not one preferred over the other. Citizens in this new society would be able to vote and run for office; you would not have arbitrary arrest; you would have freedom of speech and freedom of assembly. Because skills and capacities would not be distributed any more equally in the new society than they are in any other human society today, the guiding principle would be that inequalities would be arranged so that they were to the benefit of the least-advantaged members of the society, and that offices and opportunities would be open to everyone. Sounds familiar? Well, yes, it is more or less what you get in a social welfare society like ours — a regulated market, a safety net, universal education, and so on. It doesn’t solve everything, but it is great improvement on what was the case a few hundred years ago.

Now for Rawls liberty and equality are of comparable importance, and it will follow from that value that my freedom of speech cannot be greater than yours, and in consequence you and I will need to come to some sort of agreement about how much freedom of speech (and how much freedom of anything) we can each enjoy if our freedoms are equally valid. That will mean that these freedoms are qualified, not absolute. The real and potential conflicts between citizens are dealt with through laws that arise out of particular cases and then apply whoever there is a comparable case. They are not dealt with by pointing to ‘rights’ that transcend everything.

I feel that I have only scratched the surface of this subject. It is both a conceptual bog and a verbal bog. And I haven’t dealt at all with what seems to be happening in the USA and to a perhaps lesser extent here — the limitation of freedom of speech through the action of citizens on other citizens, rather than by acts of the State. That will be for another time.

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About the Author

Don Aitkin has been an academic and vice-chancellor. His latest book, Hugh Flavus, Knight was published in 2020.

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