About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Saturday, June 07, 2008

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.


Anonymous said...

Russell Blackford said ...
"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 -..."

"In Australia there is no explicit legal protection of freedom of speech. The most commonly understood notion of freedom of speech derives from the United States where the First Amendment to the Bill of Rights reads, 'Congress shall make no law... abridging the freedom of speech, or of the press...' Some argue that freedom of speech in Australia exists to the extent that there is no law restricting it. However in the absence of a positive right to freedom of speech there is little protection against censorship on the part of government or other interests. ...

The offence of blasphemous libel, which some might have considered obsolete, received prominence through the (unsuccessful) attempt of the Catholic Church to obtain an injunction preventing the National Gallery of Victoria from exhibiting the Serrano photograph Piss Christ. The court in its decision raised some doubts as to whether blasphemy would be considered as remaining part of the law of Victoria, but did not decide the point."

SH: It seems to me that rather than patch the structure, that the foundational principles need to be shored up. Blasphemy does wonders for the relativism philosophical doctrine. :-)

"The Passion of The Christ movie was threatened with obstruction and even censorship by some of the most powerful behind-the-scenes forces in New York City, Washington D.C., and Hollywood. This battle became a focal point for the Culture War and has changed Hollywood forever.

These are the same forces which supported the absolutely blasphemous 1987 movie, The Last Temptation of Christ, -- a movie which viciously falsified the Gospels, defamed Christ, the Apostles -- and made Judas the good guy and hero!"

SH: I hope that comslaw.org is a reliable source of information when it states Australia has no root explicit legal protection for free speech. I think that over-extends the default authority left for the judicial branch to determine. A few time now Russell, I've thought you would make a good politician!

Russell Blackford said...

Nah, my skin isn't thick enough for me to be a politician, and I'm much too shy in person. And at the same time I'm not "normal" enough in various ways. I'm a pretty effective debater in print or in a courtroom, but party politics wouldn't suit me.

At various times in my younger life I considered a political career, but now I'm on the wrong side of 50 it's definitely passed me by, and that's probably a good thing. This way, I now get to say what I really think. I'm happy to collaborate with allies, though.

Tony Comstock said...

Although they've done fine work in other areas (defending the rights of Nazis, terrorists, criminals, etc) when it comes to the intersection of photography, nudity and sexuality, and free speech, the ACLU has tended to be (disappointingly) conservative. They've been conspicuiously absent from cases at the leading edge of these issues.

I am a "card carrying member of the ACLU", but I don't count on their coming to my defense should the state set its sights on my films or my liberty.

Alison Croggon said...

Thanks Russell, for this very clear explication. I am not myself keen to live in a state whose laws are shaped by special interest lobbies (mind you, we already have our society shaped to a great degree by special interests such as oil corporations, so I'm not that sanguine). But I certainly agree that those of us who value freedom of expression have to get organised. Difficult, because unlike emotive issues like child abuse, it is not an issue that bends easily to single-issue politics and media spin.

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Anonymous said...

Alison, Russell - special interest groups exert their power with great zeal in well organised campaigns all the time, they use their "freedom of speech" rights to great effect to lobby - perhaps the arts community need to employ similar tactics?

The ACL calls for pressure on advertisers advertising during the screening of Californication - http://www.acl.org.au/search/display.stw

(I launched a simple personal counter by writing letters of support to advertisers who refused to remove their ads.)

The AFA call for submissions on Senate inquiries-

When the OFLC call for submissions on review of their processes the vast majority are written by conservative groups - that's how opinion and policy is shaped.

They wear away – one special interest at a time.

I'm sure that Mal Day at adultshop.com who's spent more than $1.5million dollars in the Australian courts presenting the Erotica Viva case defending the principle that Australian adults have a right to view non violent sexually explicit material in this country, could use a few letters of support.


Russell Blackford said...

Ell, I do support the idea that Australians should have a right to see non-violent, sexually-explicit, erotic material. That is a huge issue in itself, and I suppose I see it as the role for a body like the Eros Foundation...


... to be there fighting the fight over it.

While that fight is important, and I don't wish to denigrate it, what's been worrying me more is the creation of fancy new kinds of restrictions on speech. Long-time readers of this blog will know that religious vilification laws are a particular target - I'm one of the very few people in Australia prepared to put a cogent case in opposition to these laws, and, indeed, to the over-broad and over-zealous legislation on racial vilification.

I don't see a lot of people in Australia standing up for freedom of speech in general, but I suspect that quite a few now think, with the attacks on Henson, that the assault on freedom of speech has gone too far. I'm hoping that this debacle will radicalise more people.

The trouble with standing up for freedom of speech is that you can end up defending a lot of speech that you don't like - or at least defending the rights of the people responsible for it (whom you may not like, either).

In my case, I'm no fan of the movie Expelled, which is meretricious creationist propaganda, but I do think that its creators should not have been stopped by copyright law from using "Imagine" in the ironic way that they did. I don't like racist speech. I'm no fan of the things apparently said about Muslims by preachers at Catch the Fire Ministries. Although I'm not against all forms of pornography and erotica by any means, there are some kinds of pornography that I'm certainly not happy about.

However, standing up for freedom of speech in general is worthwhile for the reasons I tried to identify in the post, and I hope that more people will now be prepared to do it despite the risk of being associated with kinds of speech that can be ugly and offensive.

Anonymous said...

Obscenity is illegal in the USA, it is not protected speech.

Similarly shouting 'fire' in the cinema, or pointing out that most of Bill's internet customers are pedophiles.

(which they are)

One or two of the images have more viewers than the rest of his career multiplied by many fold.

I therefore think Alison's post was a bit ironic, it was a special interest group that saved Henson's hide,

the pornography industry were also supporting Henson, and how much cash have they?

How much does Henson make from his little boy photos, the ones which are out back,

why can't he hire a lawyer, litigate me in the UK or USA etc. I'll tell you why, he'd lose, he'd go to jail.

In my country, his material is child pornography, and the UK, is recklessly wild, it is not exactly the red-pencil state.

Anonymous said...

THe ACLU supported NAMBLA, they're banning the boy scouts, attacking war memorials,

'The ACLU was seeking to have the decision suppressed so that it would not be used against them in future lawsuits.'


There you are,

Tony Comstock said...

"Although I'm not against all forms of pornography and erotica by any means, there are some kinds of pornography that I'm certainly not happy about."

Pornography and erotica? How do distinguish one from the other? Having made such a distinction, how can you tell either porngraphy or erotica from Art? Will there be a an official government classifacation board?

Oh wait! There already is!

Tony Comstock said...


You really out to get yourself a bloggger ID. The anonymous threatenning is kind of creepy. Makes you look like someone who uses his interest in "public morals" and "child protection" as an excuse to wallow in precisely in the sorts of images and ideas you "rail" against.

You also might want to familiarize yourself with the definition of obscenity in the US. See Miller v California.

If you'd like to argue children were mistreated in the course of making these photos go ahead. The argument that you (and others)have made, that a small selection of photos provide proof one way or the other is absurd, but go ahead.

And if you want to paint yourself a complete fool, argue the photos are obscene. Distasteful? Perhaps. But they dont' begin to approach the threshhold for obscenity.

Russell Blackford said...

Obscenity in the US is quite different from anything we are discussing here. As it happens I do know something about American constitutional law. Actually, anonymous, most of what you is ill-informed. E.g. it wasn't a special interest group whose actions led to the collapse of the case against Henson. It collapsed because by any sane standards the images that Rudd and others went ballistic about were so mild that no legal case could possibly be made against them under relevant statutes, and the authorities finally realised this.

Pornography versus erotica, Tony? Well, the Henson photos aren't either IMO, but various distinctions can be made (e.g. Beatrice Faust has attempted to make the distinction in a reasonably principled way). It's not an issue of huge relevance to me right now, but of course it could be in a court case involving proof of pornographic intent.