Organise for free speech

With so many voices attempting to attack the principle of freedom of speech and expression (which I'll just call "free speech" where convenient), surely it's time to organise more effectively in its defence.

Following the collapse of the legal case against Bill Henson over the past couple of days, we are already seeing well-funded lobby groups trying to get the law changed in New South Wales - they are seeking new statutory restrictions on artistic expression. Not too long ago, Victoria took the unnecessary step of introducing religious vilification legislation, with disastrous results, and other states are bound to follow. There are pressures of many kinds, throughout the Australian jurisdictions and elswhere in the Western world, to control what can be said and how it can be expressed.

One problem with organising for free speech is finding a rationale that everyone can accept. Even on this blog, we have seen different comments showing quite conflicting ideas of what free speech really is.

In part, the justification for free speech is the general libertarian (in the best sense) presumption against using the power of the state to stop individuals from living how they please and doing what they want. It relates to the general principle of liberal tolerance: in a liberal society the state will not (or should not) tell people how to live their lives or what the good may be. There are many views of the good, and a liberal society will tolerate all except those that are too intolerant to co-exist peacefully with the others.

However, a number of more specific justifications are commonly put forward for free speech, in particular - above and beyond ordinary freedoms in a liberal society.

In the past I've cited the judgment of Justice McLachlan in R v Keegstra, a 1990 Canadian Supreme Court case on hate propaganda, which provides an accessible and concise synopsis of some of the main benefits of free speech: (1) free speech promotes "the free flow of ideas essential to political democracy and democratic institutions" and limits the ability of the state to subvert other rights and freedoms; (2) it promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-actualisation of speakers and listeners; and (4) it is justified by the dangers for good government of allowing its suppression.

Each of these points can be elaborated, and some may need to be qualified. The first and fourth can be bracketed together as democratic justifications. They relate to aspects of free speech's political role in a liberal democracy. The third relates most closely to general libertarian values but stresses the particular importance of language, symbolism and representation for our lives and autonomy. It can be developed further by referring to the importance for individuals of communicating deeply held religious and similar beliefs and the value of creativity as expressed in literature, art and many other ways, including personal presentation or "style".

The issue here is how we should treat other individuals as moral and psychological beings. We might refer to this as the "moral" justification, if we want to distinguish between political principles, in a narrow sense, and principles that relate to our intuitions about how individual people should be treated for their own sake. Discussion of this point also highlights the fact that we are beings with psychological needs that involve self-expression and self-actualisation. With this in mind, and with some misgivings about the expression, I will refer to the "psychological" justification of free speech.

John Stuart Mill's classic defence of free speech, in On Liberty (1859), is actually phrased as a defence of "the Liberty of Thought and Discussion". One way of putting this point is that free speech of certain kinds is integral to rational inquiry. If we value this, we should also advocate the liberty to articulate potentially unpalatable ideas and unpopular social critiques. That, however, is quite a narrow concept compared with freedom of speech as commonly understood, which includes robust and even offensive kinds of interaction that would be strongly inhibited, if not actually forbidden, in, say, an academic seminar.

Mill's argument might be termed the rationalist justification. It is very powerful as far as it goes but inevitably somewhat elitist, since relatively little speech and expression in real-world societies appeals primarily to the intellect.

However, there are senses in which the rationalist justification can be extended beyond the speech of academics, scientists and other intellectuals. In one sense, it merges with the psychological justification, if it is interpreted as our individual need to pursue truth and understanding in our way own, necessarily reliant on resources available through language. In another sense, it encourages us to protect serious literature and art - especially narrative forms such as prose fiction, theatre and cinema - one function of which is to open minds by appeals to the imagination.

Mill also made the powerful point that is often forgotten (indeed, even I have been known to overlook it) that it is dangerous to let any view, however certain it appears, stand unchallenged. The one thing we must never do in this area is enshrine certain viewpoints in the law to the extent that arguing for a different viewpoint is suppressed. Ronald Dworkin has taken this a step further, in arguing that each of us should be allowed to live in ways that will tend to shape the moral ethos of our society - without the state saying that people with some ideas have a right to do so, and others don't. The boundary here must have something to do with direct harm, not harm merely from the fact that the ideas we express in our lives may become popular.

This analysis suggests a number of conclusions. First, there are powerful overlapping arguments for free speech as a basic political principle in any liberal democracy. Second, however, free speech is not a simple and absolute concept but a liberty that is justified by even deeper values. Third, the values implicit in the democratic, rationalist and psychological justifications for free speech will not apply equally strongly to all speech in all circumstances, and these "free speech values" may sometimes have little application at all. For example, they are not seriously at stake (or at least to the same extent) in arguments about purely commercial advertising.

However, if free speech is to be a political or constitutional principle that imposes practical restraints on the coercive power of the state, it needs to be formulated in a relatively simple and sweeping way. It cannot track the precise relevance of all the underlying values in every circumstance where speech might be suppressed. It follows that a constitutional restriction on state interference with free speech might give practical protection to some speech that has little to do with democratic, rationalist and psychological values. This creates a buffer zone around the more central areas where free speech values apply strongly, and that may well be desirable. In particular circumstances, other values might be more important than free speech but any exceptions to the principle must be defined carefully; otherwise, they will soon gobble up the rule.

That is a real danger at the moment.

I'm sure that some comments replying to this post will emphasise that free speech is not an absolute, so let me repeat that I understand this. Yes, there are many circumstances in which other important values need to be taken into account, and we must always be prepared to discuss those values on their merits. No value is absolute in the sense that it overrides all others in every conceivable situation. At the same time, the case for making an exception to the presumption of free speech often falls apart on closer inspection - as I believe it did when the Henson issue was considered closely.

It can never be guaranteed that free speech values will prevail over all other values in all possible cases - to think that would be to show a naive and indefensible kind of absolutism. But attacks on free speech should at least be subjected to severe scrutiny wherever and whenever they occur.

The piecemeal introduction of religious vilification laws and the possible tightening up of censorship restrictions relating to nudity and sexuality seem, at the moment, to be the greatest dangers to free speech. But many other issues arise from time to time, whenever somebody with a certain degree of political influence thinks that her particular issue is of overriding importance.

I hope that there is now a large and varied constituency of people who have been alerted to the dangers for free speech in Australia. I'm not sure how we can organise - and it's not really my talent - but some method of organisation must be found. I certainly don't trust the existing civil liberties bodies to do the job - we have no organisation in this country with the commitment, clout, and widespread support that the ACLU has, over in America. Indeed, civil liberties bodies sometimes seem all too willing to trade off freedom of speech - where was the outcry over religious vilification laws in Victoria? Where is the outcry as other states consider going in the same direction?

Something more has to be done - something much more - or a precious freedom will be increasingly endangered.