Thursday, 6 August 2015

On Freedom of Speech

We hear a lot nowadays (when don't we, but there is usually a change in focus as the agenda of the free-speechers shifts). Earlier this year, the Federal Government, led by Tony Abbott, cited freedom of speech as its reason for attempting to repeal sections 18C and 18D of the Racial Discrimination Act. For those non-Australians reading my blog, those sections were the ones dealing with vilification; for example, they make it illegal to shout racial epithets in the street. And yes, the attempt was unsuccessful, following massive protest by every church, law society and human rights-related organisation in the country. (Read about the Law Institute of Victoria's

We may all choose our own socks.
It is a Fundamental Human Right.
However, I digress. My point here is that Freedom of Speech tends to be treated as though it were a fundamental human right, and therefore a thing in itself, separate and distinct from, for example, the right to choose the colour of one's socks.

This is, in my view, a fallacy, and a dangerous one. Speech acts (shouting a slogan, greeting a friend, reading aloud, etc etc) are just a subset of acts in general. There is no rational ground for granting speech a special status, exempting it from the usual considerations that limit human action.

We limit our acts in a number of ways. Aside from practicality (it's just too difficult to climb that telephone pole, and the kudos obtained from balancing a full glass of champagne on top of it is not worth the effort and risk involved) and law (climbing telephone poles is a Public Order offence), human action is in practice restrained by a number of normative forces, including but not limited to religious strictures, social sanctions, consideration for others, etc.

Because no one wants to step in it.
Or smell it.
What all of these limitations have in common is that their function is to restrict our liberty at the point at which it intersects with the liberty of others. For example,  where I live it's illegal to smoke in restaurants and on public transport. The rationale behind that is that a person's right to smoke is necessarily modified in its exercise by another person's right to eat and travel without having to breathe smoke. There is a legal duty imposed on dog guardians to pick up their dog's poo whenever it is deposited in a public place. This law exists to protect the right of other citizens to walk about freely without having to run a brown obstacle course.

No one likes a thief.
At a more fundamental level, the illegality of expressing your dislike of people by punching them in the face protects your own snoot from the disregard of others. And then there's private property. Have I said enough about this? I think so.

In the same way, speech acts may be subject to limitation where they impinge on the rights of others. For example, the use of racist language in a public place. This goes to the right of people (not necessarily those targeted by the language, but all of us) to move about in an environment that's safe and level for us all. More specifically, it speaks to the right of, for example, a black person, not to be subjected to racist harassment every time he pokes his nose out of doors.

This is not, of course, an argument for wholesale censorship. Laws restricting freedom of speech need to be carefully scrutinised, in the same way as do those restricting freedom of action. There needs to be a clear rationale and a genuine good to be obtained. But equally, free speech is not a sacred cow, to be held immune from all restriction.

*** my own collected short fiction, Once Upon A Dragon, will release on Amazon on 31 August.
Preorder it here.

No comments:

Post a Comment