After the fatal terrorist attack on French satirists at Charlie Hebdo, Keri Phillips investigates the origins of free speech and the legal limits to speech and expression in Australia.
Free speech is a fragile flower
Keri Phillips (photo) of ABC Radio’s Rear Vision program investigates the origins of free speech as an idea and takes a look at the legal limits to speech and expression in Australia.
In western liberal democracies, free speech has long been seen as essential to robust political debate, but the manner of its embodiment in law varies from country to country.
Even in places like the United States, where free speech is guaranteed by the First Amendment to the Constitution, it was initially offered extremely limited protection.
‘Most kinds of speech wouldn’t really have been protected,’ says Sam Nelson, the author of Beyond the First Amendment: the Politics of Free Speech and Pluralism, ‘and it doesn’t develop in a formal way where somebody says, “Oh, here’s the Free Speech Bill and now we are going to protect free speech when we didn’t before.” I think expectations about speech being protected or discussion and deliberation being protected develop over time.
‘For example, during the colonial period in the United States, people had an expectation that they had freedom of speech. It didn’t look very much like what we take for granted today, they could still face corporal punishments for libel and slander, for instance. They would cut off the top of people’s ears for libel, or pierce their tongue with a red hot poker for slander. Even though they understood themselves to have freedom of speech, it wasn’t protected to the extent that they could do whatever they wanted.’
Through the Enlightenment and into the 19th century, influential writers such as John Stuart Mill contributed to the idea that freedom of speech is essential to democracy and even to freedom itself. While governments have always set limits on speech with laws on libel, obscenity and so on, in 1948 the United Nations recognised the right to freedom of expression in its Universal Declaration of Human Rights. During the last half of the 20th century, new limits to free speech have become enshrined in law.
‘I think there has been a change of sensibilities,’ says Professor Simon Rice, from ANU’s College of Law. ‘A lot of the limits on free speech for a long time were limits that were designed to protect property, and I mean property in a broad sense, including reputation.
‘In the second half of the 20th century there was a greater awareness of perhaps the need to protect people who were vulnerable. Rather than protecting property owners and reputation, we could also extend to protect people who weren’t able to actually protect themselves.’
Rice cites consumer protection laws, which limit what companies can say about their products, and laws that stop racist or hate speech as examples.
In Australia, the Whitlam government passed the Racial Discrimination Bill in 1975. It drew on the UN Convention for the Elimination of Racial Discrimination, to which Australia was a signatory. As happens with many such treaties, the decision was made to translate it into domestic law. Under the new law, cases of humiliation and intimidation would be heard by a commissioner for community relations who would have the power to impose fines.
‘The Racial Discrimination Act has in it a particular provision regarding what is called racial vilification,’ says Rice. ‘All the states and territories, as well as the federal law, prevent racial vilification.
‘What it means is that while you are free to say what you like, there are limits. If you want to talk about race, issues of race, you are free to do so, short of causing offence or humiliation to somebody if what you say is based on race. It sets a limit around speech that’s based on race.’
The Racial Hatred Act passed by the Keating government in 1995, amended the Racial Discrimination Act to allow people to complain about offensive or abusive behaviour based on racial hatred. Australia’s laws in this area thus came to mirror the original UN treaty.
While laws limiting free speech, especially in the area of race, have become more restrictive in Australia, in the United States, where free speech is guaranteed under its constitution, they have moved in the other direction. Although libel and obscenity are to some extent not protected by the First Amendment, there are really very few hard and fast limits placed by the state on people’s speech.
‘It was very much an issue, especially in the 1990s, in two different areas’ says Sam Nelson. ‘One was in regulation of pornography and obscenity, and the other in the area of regulation of racist hate speech.
‘There were efforts in the 1990s by a number of cities around the country to pass ordinances to prohibit racist fighting words, targeted racist insults, things of that nature. The [Supreme] Court ended up striking those down, saying essentially that cities, in trying to restrict racist fighting words, were taking a position improperly in a debate about race, that they were favouring antiracist speech over racist speech and essentially they couldn’t favour one viewpoint over another.’
Laws protecting people and groups from hate speech on grounds such as race, religion and disability are now common elsewhere in the world, though, including in France.
‘Those laws restricting hate speech really depend a lot on the political culture in the society that is passing them,’ explains Nelson. ‘They are very difficult to fit in to the individualistic constitutional law of the United States and the very individualistic political culture. It is easier to pass those kinds of restrictions where the concept of groups or communities is stronger in the political culture, where there are constitutional protections for group rights. Various European countries have stronger laws in that area. France has very strong laws in that area. There are a couple of very interesting cases where American internet auction sites have listed Nazi paraphernalia, for instance, and the French authorities have gone after internet companies who have allowed those internet sites to be visible in France where that kind of auction would be prohibited under the hate laws.’
A related question is how far should comedy go?
How do laws restricting freedom of speech apply to satire and other forms of humour?
‘Certainly the law is not limited to speech that is either text-based or verbal,’ explains University of Queensland’s Professor Katharine Gelber, the author of several books on free speech and hate speech.
‘The idea of vilifying conduct in all of these provisions tends to encompass any kind of expressive activity. You could be holding up a banner, you could be engaging in various forms of protest. Speech is considered broadly to include expressive conduct.’
Satire and humour, as in the case of French cartoon magazine Charlie Hebdo, are protected in different ways in different jurisdictions. In Australia, despite laws prohibiting racial vilification, there is no federal law regarding religious discrimination.
‘There is no absolute defence in Australia that because it was satire that it can’t be actionable under racial vilification laws, but whether it’s satire or not would be taken into account in considering the context within which the cartoon was published,’ says Gelber.
The origins of Charlie Hebdo lie in the student movement of the 1960s and its prime purpose has always been to lampoon and outrage the establishment. Over the decades its cartoons have satirised political sacred cows such as Charles de Gaulle as well as the Catholic Church. The magazine has been accused of being both anti-Semitic and anti-Muslim.
‘It has remained prominent particularly since the Danish cartoons scandal, which broke out in 2005,’ says Dr Will Noonan, a researcher in humour at the University of Burgundy, who discovered Charlie Hebdo as an 18-year-old student.
‘In 2006 a group of Muslim associations in France launched a court case against the newspaper. The court case itself was heard in 2007 in the middle of the French presidential election campaign. It got a huge amount of air time.
‘Since then the newspaper has perhaps been seen as getting more and more anti-religious. It has always claimed to try to strike a balance between attacking all religions equally, but it has been seen as becoming more and more anti-Islamic, which is probably a fair judgement.’
Of course, it can be difficult to separate racial vilification and the criticism of a religion.
‘There is a difference between inciting people to racial hatred and criticising their beliefs,’ argues Dr Brian Klug from the Faculty of Philosophy at Oxford University.
‘The distinction, however, enters a grey area when people’s beliefs form part of their core identity, and this is a problem that arose in connection with the cartoons of Mohammed published by Charlie Hebdo, as with the Danish cartoons a few years ago.
‘Many of the people who reacted against those cartoons who identify as Muslim were secular. It wasn’t really about their beliefs; it was about their identity as Muslims.’
The Rear Vision program, presented by Annabelle Quince and Keri Phillips, puts contemporary events in their historical context, answering the question, ‘How did it come to this?’
Duration: 29min 31sec
Broadcast: Sun 8 Feb 2015, 12:05pm