Is the history of freedom of speech relevant to the current debate in Australia?

Free speech is certainly in the news in Australia. Early in the week we had the reaction to Tim Mathieson's suggestion that the best way to have your prostrate digitally examined would be to 'perhaps look for a small, Asian, female doctor'. I thought George Brandis, shadow attorney-general, struck the right note when he responded:

'I don't think we want to have in this country a culture of finger-wagging and confected outrage every time someone says something that might be better left unsaid'.

A day or so later, Nicola Roxon, the attorney-general (A-G), backed away from the 'offensive behaviour' provisions of her draft anti-discrimination bill, saying that the main purpose of the bill was to simplify and consolidate discrimination laws and that it 'has never been the government's intention to restrict free speech'. That seems to imply that inclusion of the offensive behaviour provision was due to the Minister's incompetence. I suspect, however, that the A-G knew exactly what she was doing and that she still intends to reinforce the restrictions on free speech in existing discrimination laws.

In an opinion piece in 'The Australian' on Jan. 10, the A-G suggested: 'telling a female staff member "shorter skirts would be better for all girls in the office" might well breach discrimination laws'. I am prepared to accept her word for that, but the example seems to me to raise questions about the desirability of discrimination laws that restrict speech to that extent.

Should anti-discrimination law be applied whenever men refer to their adult female work colleagues as girls (or women refer to their male work colleagues as boys, or even 'old boys') and make mildly sexist remarks about their clothing. I imagine that most males who might use words such as those quoted by the A-G would be intending to engage in good-humoured banter with female colleagues - whom they consider as equals, in the sense of being capable of 'giving as good as they get'. (Foreign readers should understand that friendly exchanges of mildly offensive remarks are a characteristic of Australian culture.) Of course, those who make sexist comments, even in jest, run the risk that work colleagues will consider their behaviour unacceptable and ask for an apology.

That is my point. In modern Australia, when people working in offices find themselves subjected to objectionable speech, they do not need to threaten legal action to ensure that perpetrators suffer humiliating consequences. The A-G apparently thinks threats of legal action are the most appropriate response to bad manners.

In the same article, the A-G suggested her aim is to 'get a tricky balance right' by ensuring that freedoms are subject to 'appropriate limits that provide protection in certain circumstances'. She gives the impression that she accepts free speech as the rule, with restrictions only to be imposed in certain circumstances. Yet, her proposed bill reverses the normal burden of proof. Those accused of discrimination bear the onus of proving that their speech has not been for alleged purposes that are contrary to the discrimination legislation.
 

Politicians might be less keen to use the coercive powers of the state to enforce their notions of political correctness if they read In Defence of Freedom of Speech, by Chris Berg. The main point to emerge from the book is that freedom of speech is at one with freedom of thought. When governments restrict freedom of speech they interfere with the rights of individuals to express themselves. The heroes of Berg's story, Benedict Spinoza and Benjamin Constant, did not confine themselves to support for politically correct speech.

Benedict Spinoza (1632-1677) argued that the presumption should be on protecting freedom of expression rather than limiting it, even though espousal of some doctrines could have negative consequences for society. He blended two arguments for freedom of expression: the natural rights argument that the state cannot control thoughts; and the pragmatic argument that attempts to do so creates more problems than it solves. In relation to the latter point he noted that states which limit freedom find their regulations abused by interest groups seeking to benefit at the expense of others.

Benjamin Constant (1767-1830) also admitted the possibility that free speech 'may corrupt manners or shake the principles of morality', but he argued that people 'should be taught to preserve themselves from these dangers by their own efforts and reason'. Constant suggests that governments that try to enforce uniform belief encourage hypocrisy and resistance:

'To prop up an opinion with threats invites the courageous to contest it'.

Berg acknowledges the contribution to development of free speech by a range of other people. He points out, however, that many of those who have been widely quoted as supporters of free speech were only prepared to advocate freedom of speech under certain circumstances or for certain groups of people.

My only qualification about this book is that I would like to have seen greater recognition of defamation as a legitimate reason for restriction of freedom of speech. At one point, Berg suggests:

'The analogy between property and reputation is widely used but deeply incoherent'.

I disagree. Damage to the reputation of a person or business is equivalent to loss of property. This is most obvious when damage to the reputation of a public company results in a decline in its share price. In many other instances there is a loss of future earnings and/or additional costs incurred that have an assessable monetary value. It seems to me that the relevant issue in relation to defamation is whether individuals or firms have a right to expect the state to defend their reputations. Those who have unwarranted reputations for good conduct, should not have those reputations defended by the state.  

Overall, however, this book seems to me to provide an excellent account of the evolution of free speech in western civilization. 

Postscript:

Soon after this post was written, Nicola Roxon resigned from the position of Attorney-General. We will have to wait and see what that means for the future of free speech in Australia. As James Patterson has noted, the new Attorney-General, Mark Dreyfus is on the record as saying that he considers 18C of the Racial Discrimination Act - the section apparently contravened by Andrew Bolt - is a good law.

I haven't studied the Bolt case, but the judgement does seem to have muffled public discussion of the question of how aboriginality should be defined for public policy purposes. I suspect that potential commentators are now concerned that if they openly express their genuine beliefs on such matters of public interest, they might be required to prove that their remarks constitute fair comment.

Does the value of free speech depend solely on its contribution to democracy?

Several rationales for free speech were discussed in the Finkelstein report on media regulation, which was released in March last year. Incidentally, the report states that it 'must be attributed' as the 'Report of the Independent Inquiry into the Media and Media Regulation'.

Since the report discusses rationales for free speech in a chapter headed 'The democratic indispensability of a free press', it is obvious from the table of contents that Ray Finkelstein sees the rationale for free speech mainly in terms of its contribution to democracy.

I agree that free speech is the life blood of democracy but, as discussed in Free to Flourish, my prior conviction is that the rationale for freedom and democracy rests on their contribution to human flourishing. As I see it, a balanced account of the contribution of free speech to human flourishing would recognize that free speech – freedom of expression - expands the opportunities available to individuals in ways that are not necessarily associated with democratic institutions. It would note that democracy emerged as an outcome of a process intended to protect the rights of citizens (including their right to free speech). It would also acknowledge that the merits of democracy still depend on the potential of democratic processes to defend free speech and the other freedoms that provide the basis for human flourishing.

Defenders of Finkelstein could suggest that 'self-fulfilment and autonomy' and libertarian rationales for free speech are discussed in his report. However, the discussion of self-fulfilment focuses on the views of Katherine Gelber – a follower of Martha Nussbaum– who seems only prepared to defend speech 'that is constitutive of the formation and planning of one's life in ways commensurate with one's informed conception of the good'. Elitist nonsense! Who is to decide what constitutes 'an informed conception of the good'? Are adults who do not have 'an informed conception of the good' to be denied the right to speak their minds?  

Finkelstein's discussion of libertarian theories of the press is under the heading, 'Social responsibility: a theory of the press', so it is not surprising that libertarianism is given short shrift. From what I had previously read about the report, I was expecting that the idea of a free press would be assaulted on the grounds of monopoly, potential abuse or power etc. yawn, yawn. But, after going through all that, Finkelstein asserts that libertarian theory did not provide a workable solution to the challenge provided by broadcasting and that governments 'found it necessary to intervene …'. He adds: 'This amounted to a rejection of libertarian theory'.

Gulp!  So, why doesn't Finkelstein tell us what he thinks, rather than pretending that there was no workable solution other than regulating to control the activities of broadcasters? The workable market solution, as Ray and just about everyone must know, is allocation of the broadcast spectrum, like other scarce resources, to the highest bidder. Does the author have good reasons to believe that would not enable scarce resources go to their highest value use? If the Honourable Ray Finkelstein, QC, former judge of the Federal Court and former president of the Australian Competition Tribunal, thinks that the way government currently allocates the broadcast spectrum is better than the market solution, why doesn't he make the case?

Finkelstein's discussion of the 'search for truth' as a rationale for free speech raises discussion of the 'marketplace of ideas'. He seems somewhat pessimistic about the ability of people to discover truth, but nevertheless remains optimistic about the benefits of democratic discourse – subject to government regulation to ensure social responsibility. He ends up seeing a need to obtain a balance between demands that the media be accountable for exercise of its power and the need for the media to be free to hold governments to account.

I found that discussion to be peculiar. Once the concept of a market for ideas was introduced, it would be logical to expect some exploration of the nature of this market. There is mention of monopoly and competition in the rejection of libertarianism, but no discussion of contestability. Elsewhere in the report, the idea of the conventional media being increasingly exposed to competition from on-line sources is mentioned, as is public scepticism about the veracity of media reports, but the discussion of the rationale for free speech proceeds as though every media outlet has exclusive access to the minds of its customers.

Contestability seems to me to be at the crux of the issue of whether media proprietors and editors have power to exert undue influence on public opinion. The report provides some evidence of media outlets presenting false or misleading reports, but doesn't provide any evidence that these have gone uncorrected elsewhere in the media.

Overall, in my view, the Finkelstein report on media regulation provides an unbalanced account of the rationale for free speech. This part of the report seems to me to display an amazingly brazen degree of bias from an author who favours greater regulation to ensure balance in private media reporting. Some readers might be thinking that comment just reflects the fact that different people have different views of what reporting and analysis is balanced and unbalanced. That is a valid point to make whenever issues of balance arise. In this instance, however, I doubt whether many people who have some knowledge of the topic would view this report as providing a balanced account of the rationale for free speech.

In my last post, I promised to review In Defence of Freedom of Speech, by Chris Berg. Unfortunately, that will have to wait. I thought it would be a good idea to take a quick look at the Finkelstein report before writing my review – and got myself side-tracked!  

Is freedom of speech in Australia protected by international treaty obligations?

A few weeks ago, Jim Spigelman, ABC chairman and former New South Wales chief justice, criticised the federal government's proposed Human Rights and Anti- Discrimination Bill on the grounds that it poses risks to freedom of speech.

Spigelman seems to have been more successful in alerting members of the public to the risks associated with the proposed legislation than have media interests and other advocates of free speech.

Spigelman's drew attention particularly to the provision of the proposed Bill, to be carried over from earlier legislation, that make it unlawful to 'offend' another person. He argued: 

'The freedom to offend is an integral component of freedom of speech.  There is no right not to be offended'.

He went on to say:

'I am not aware of any international human rights instrument, or national anti-discrimination statute in another liberal democracy, that extends to conduct which is merely offensive'.

Spigelman's contribution made me wonder whether the government has considered the incentives that are created when they seek to mute criticism of the practices or attitudes of groups whose members are easily offended and prone to respond to criticism by claiming that they feel insulted or humiliated. When any group can gain advantage by appearing to be easy to offend, insult or humiliate, it is reasonable to predict that other groups will quickly learn how to play that game. Attempts to discuss contentious issues are likely to be increasingly stifled by emotional outbursts of people threatening legal action.

While Spigelman's contribution was welcomed by free speech advocates, James Allan made the interesting observation at Quadrant Online that it was a fairly enervated defence of free speech. He questioned whether it would make would any practical difference if it was lawful to offend people but not to humiliate them. Allan also noted that Spigelman claims to have been influenced by a book by Jeremy Waldron, which actually favours restrictions on freedom of speech in the United States. While arguing for laws to protect 'people's dignity against assault', Waldron suggests that it is not an appropriate objective for the law to 'protect people's feelings against offence'.

Spigelman gives the impression that his defence of freedom of speech is based on the desirability of Australia being seen to comply with its international treaty obligations:

'We should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech'.

I hope Australia's international treaty obligations do protect freedom of speech. Article 19 of the Universal Declaration of Human Rights seems to provide such protection: 

'Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers'.

But the Universal Declaration is not a treaty, so it may not directly create legal obligations for Australia.

I don't know whether any other treaty obligations protect freedom of speech. Having just read In Defence of Freedom of Speech, by Chris Berg, I am not confident that they do. Berg describes how our international treaty obligations were contaminated by restrictions on freedom of speech insisted upon by the Soviet Union. For example, in negotiating the International Covenant on Civil and Political Rights, the Western countries proposed limiting restraints on speech to those that were an 'incitement to violence'. The Soviet Union proposed extending those restraints to 'incitement to hatred'. The wording adopted by the UN requires governments to ban 'incitement to discrimination, hostility or violence'. I fear that a government could even use that provision to help justify suppression of speech that it deems to be hostile to itself.

I will write more about Chris Berg's book in my next post. 

'Could these rules have emerged from agreement by participants in an authentic constitutional convention?'

That question is quoted from the 1986 Nobel Prize Lecture of James Buchanan. It is standard practice on this blog for entries to take the form of questions and answers, but this is the first time my question is a quote.

James Buchanan, an outstanding economist, died last week. There have been many tributes published, some of which are included in a collection published by Alex Tabarrok on Marginal Revolution.

Buchanan emphasized the importance of asking the right questions. He implied that economists were answering the wrong questions when they recommended what policy reforms should or should not be made without considering the preferences of citizens as revealed through political processes.

What did Buchanan mean by 'agreement by participants in an authentic constitutional convention'? The convention is a thought experiment. Its focus is on reforming the rules of the game in ways that are in the potential interest of all players. Agreement implies unanimity – the participants perceive that the rules further their interests. Participants expect the constitutional rules to be in place for a long time, so they are placed behind 'a veil of uncertainty' as to their own predicted interests. Constitutional rules have to be workable in a political system in which the players have the interests and frailties of ordinary humans.

In the prize lecture Buchanan asked a question which is unfortunately just as relevant now as when he asked it. He asked whether the debt-financing regimes of modern Western democratic polities could have emerged from agreement by participants in an authentic constitutional convention. His answer:

'It is almost impossible to construct a contractual calculus in which representative of separate generations would agree to allow majorities in a single generation to finance currently enjoyed public consumption through the issue of public debt that insures the imposition of utility losses on later generations of taxpayers'.

On that basis, Australian economists should not complain too loudly that our politicians have tended to be somewhat obsessed over the last year or so with moving government budgets back to balance. An authentic constitutional convention might see the simplicity of a balanced budget rule as having a lot of merit in helping politicians to resist temptation.

 I had forgotten, until a few days ago, that James Buchanan and Gordon Tulloch (B&T) had written about the concept of 'the good society' in the final chapter of The Calculus of Consent (first published in 1958). I was particularly interested to re-read what they had written in the light of discussion of 'the good society' on this blog and in Free to Flourish.

B&T's starting point is that widespread acceptance of moral principles that are necessary for harmonious social life does not guarantee that individuals will not behave badly to gain unfair advantage over others. They then ask:

'Should the social order be organized to allow moral deviants to gain at the expense of their fellows? Or instead, should the institutional arrangements be constructed in such a way that the "immoral" actor can gain little if at all, by his departure from everyday standards of behaviour?'

The answer they provide is that the relevant choice among institutions is that of 'selecting that set which effectively minimizes the costs (maximizes the benefits) of living in association'. In the political arena, as in other aspects of life, rules of the game need to take account of the potential for the players to attempt to exploit one another by diverging from accepted standards of moral behaviour.

The question which Buchanan asked at the end of his Nobel lecture defines the continuing question of social order. It should be an inspiration to everyone:

'How can we live together in peace, prosperity, and harmony, while retaining our liberties as autonomous individuals who can, and must, create our own values?'