Offence Against Free Speech

No question: in the Western world, offence is gradually trumping free speech. Consider four separate incidents, all of which occurred in the last week.

Back in 2008, News Limited’s published a series of articles covering the deaths of four Aboriginal boys, who had stolen a car and died in an accident shortly after. The mother of three of the boys took legal action over comments published below the articles.

The Australian Federal Court found last Tuesday a number of those comments breached the Racial Discrimination Act.

Absolutely, the comments were cruel. They should not have been posted. One read “if you’re hopeless at mothering, recognise you are hopeless and don’t breed”. Another told law makers to “get out of thier [sic] ivory towers and start dealing out real punishment… instead of the 5 star treatment they get in prison”.

News Limited was ordered to pay $12,000 compensation for “offence, insult and humiliation”.

There has been one report (published in Fairfax papers) about this trial. Compare that to the outpouring of commentary about the Andrew Bolt case late last year: Factiva counts 333 separate pieces in newspapers alone.

Yet the Perthnow finding draws heavily on precedents set by the Bolt case. Sure, the Racial Discrimination Act found its current language back in 1995. But the act’s substance is only now being tested, and that substance suggests that the limitations on freedom of speech which it sets are very broad indeed. This is an evolving – and expanding – area of law.

For instance, notice that nothing in the comments quoted above makes reference to the fact that the boys were Aboriginal. The Federal Court decided, given the context of the news stories, the comments should be considered racial hatred nonetheless.

Much more attention has been given to the Kyle Sandilands episode – not least because of the extraordinary outcry when Sandilands originally aired his bizarre rant against a critic of his television show in November 2011.

Many people have suggested the Australian Communications and Media Authority’s response to Sandilands has demonstrated how weak the regulator is. But obviously a regulatory agency does not have the power to sack an employee of a private company.

And the new license condition which ACMA intends to impose on Sandiland’s station 2DayFM is actually quite significant. These new conditions provide a pretext under which ACMA could take away the station’s licence.

The conditions stipulate that 2DayFM cannot broadcast material which “demeans or is reasonably likely to demean women or girls generally and/or any woman or girl in particular”. Read that last clause carefully. For a speaker to “demean” any person who happens to be female is now forbidden – at least if they speak on 2DayFM. Sure, “Juliar” is in bad taste, but is it something that really needs to be regulated?

This is a dangerously illiberal path we are walking. And it’s a path other Western countries have travelled further along.

The conviction last Tuesday of a 21-year-old student in England for a stream of racist tweets provides no better illustration. Liam Stacey has been sentenced to 56 days jail for the sort of obscene trolling which is unhappily common on Twitter.

What Stacey wrote was foul, but his is an extraordinary punishment. Stacey was apparently drunk, and hastily deleted his tweets.

Of particular importance is the law he was prosecuted under. The UK Public Order Act 1986 prohibits “threatening, abusive or insulting words or behaviour”, which it places under the heading “fear or provocation of violence”. That this has evolved to become the criminalisation of idiocy shows how apparently modest laws can become tyrannical ones.

Even further along the path is France, where the perfumer Jean-Paul Guerlain was fined 6,000 euros for saying in a TV interview that he “set to work like a Negro”. Guerlain got off lightly. The French court could have imposed a six month prison term.

Obviously, Perthnow should not have published the seriously hurtful comments. Kyle Sandilands should not be such an oaf. One ought not get drunk on Twitter and hurl racist insults.

But if we are to remain free we must keep alive the philosophical distinction between things which are unlawful, and things which morally wrong but still lawful.

As governments expand their regulatory reach, they appear unable to conceive of the latter. Perhaps that’s no surprise. Legislators, lawyers and judges see all social issues through the prism of law.

But this legalism means we are losing confidence in society to police itself; to maintain its own standards. 2DayFM saw its sponsors drain away and its audience shrink. Liam Stacey was shouted down by others on Twitter and recanted his hateful words.

Indeed, the judge in the Stacey trial said something accidentally revealing while delivering his sentence: “I have no choice but to impose an immediate custodial sentence to reflect the public outrage at what you have done”. The power and effect of that public outrage goes unremarked here. Obviously, state regulation seems intent on supplanting society’s ability to ostracise and condemn.

And a society that drags people into the courts for nothing but offence is a deeply unhealthy society.