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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).

Monday, March 05, 2012

On the subject of free speech

It's always annoying when people like Helen Pringle, people who want to defend, or add to, the limits on our speech, make a big play about how there are already many kinds of restrictions and we mustn't be absolutists. No one, they tell us, can plausibly justify having no limits on our speech at all. Absolutism about freedom of speech, they insist, is not defensible.

But how many genuine free speech absolutists are there? This is such a strawman argument. It's true that there are various situations where the law restricts our speech and some kind of strong justification can be given for the restriction. But that in no way contradicts the background that our freedom to express ourselves through actual speech or by the clothes we wear, or our styles of presentation, or otherwise, is of enormous importance to us, and that restrictions on speech and expression are remote from the kinds of restrictions that are imposed by the core criminal law and are necessary for society to operate.

Consider defamation law. Yes, as I've said many times in the past, we do need some sort of defamation law ... at least to cover the most egregious situations where highly damaging lies ("Smith is a pedophile"), perhaps uttered by someone who has far more outreach to the population than the victim, could lead to the victim being ostracised and socially destroyed. There has to be some deterrent for this, and some redress when it happens. In particular, ordinary people who have little media access need some protection against the power of the mass media to shape perceptions and opinion.

But the fact that some situations are so worrying that the law must address them does not entail that defamation law should be broadly drafted. That fact is, rather, quite consistent with the claim that defamation law should not be wide enough to chill debate about matters of public interest - that it should, indeed, be narrowly enough tailored so that sincere people can write fearlessly, confident that they'd need to go out of their way to attract a successful defamation suit.

That is not the legal situation at the moment - on the contrary, defamation law in Australia and many other countries has wide effect, and we all need to watch ourselves - but there is nothing inconsistent in suggesting that (a) we need some defamation provisions; and that (b) defamation provisions should be tailored narrowly. In a bizarre comment that she made on my most recent contribution at the ABC Religion and Ethics Portal, Pringle simply doesn't seem to get this elementary logical point.

We can draft a statute to protect people against serious damage to their reputations from highly destructive lies (especially when they are ill-placed to set the record straight), while also leaving much room for fearless speech. It's not all or nothing. It's not even a hell of a lot of restriction or nothing. It can be carefully chosen, carefully drafted restrictions that leave as much freedom as possible to speak up, and generally express yourself, without fear of getting into trouble with the law.

More generally, there are many reasons to treat our freedom of speech and expression as precious, and not just like any other actions that we take. We have good reasons to adopt a political principle of freedom of speech above and beyond the Millian harm principle. I discuss various aspects of this in a long chapter here, in my contribution here, and over here (for free).

Just where we draw the lines with various sorts of speech might be a matter of discretion, and there is room for differences among the jurisdictions concerned. But that does not take away from the fact that our expressive freedom is precious to us, even though there is scope for the law to cover some (carefully and narrowly drafted) exceptions to it. The concept is really not that difficult, and at a time when free speech is under constant attack, including from academics like Pringle, our emphasis really must be on the importance of free speech. This is worth hammering home as often as it takes. Our freedom of speech and expression is not some kind of luxury that we can dispense with, as so often seems to be thought by the very people - academics, lawyers, and politicians - who should be defending it.

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