The assault on freedom of speech

In the first editorial of the earliest independent newspaper The Australian (no relation to the current iteration), barrister turned media proprietor Robert Wardell wrote that:

A free press is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate such [individual] influence, frustrate the designs of tyranny, and restrain the arm of oppression.

Contrast this with what Justice Mordecai Bromberg wrote in his September decision in the case of Pat Eatock v Andrew Bolt and the Herald and Weekly Times: ‘the public deserve to be protected against irresponsible journalism’.

Protected by whom? And who decides what constitutes ‘irresponsible’? The decision in the Bolt case, both the way it was made and the way it was received by those hostile to freedom of expression, is deeply concerning.

The case is doubly concerning because it is just one of many new challenges to freedom of speech. The last six months of Australian politics have underlined that freedom of speech is under threat. Greens Leader Bob Brown has called for licensing of newspapers, or, failing that, for journalists to be licensed individually. Following the Greens’ lead, the Gillard government has initiated a media inquiry with specific remit to increase regulatory oversight over newspaper ‘ethics’ – and largely because it is annoyed by the coverage it receives in News Limited papers. Various commentators now openly talk about the government forcing ‘balance’ on controversial political views like climate change.

For many on the left, it seems finding exceptions to freedom of speech is more important than defending the principle.

Freedom of speech is one of our great bulwarks against excessive state power. It is one of the basic individual liberties. Free expression is an essential human right. Considering how close to the heart freedom of speech is to liberty and liberalism, it is absolutely vital that threats against it are countered.

In September, Justice Mordecai Bromberg found that the columnist Andrew Bolt (who was profiled in the January edition of the IPA Review) had violated Section 18C of the Federal Racial Discrimination Act, which makes it unlawful to, ‘offend, insult, humiliate or intimidate’ on the basis of race, skin colour, or national or ethnic origin. The offending columns in question were published in 2009, and discussed the light-skinned individuals with part Aboriginal backgrounds who, Bolt claimed, had chosen to identify as indigenous out of a range of possible racial identities.

Justice Bromberg recognized that Aboriginality, and race more generally, is a social construct. Australian universities offer entire subjects in Aboriginal identity. Nevertheless, Bromberg found that it was, ‘reasonably likely that the ordinary person within this group would have been offended and insulted by her perception that [Bolt’s columns] were challenging the legitimacy of her identity and that of others like her.’

Certainly, Bolt made some errors, inaccurately tracing the lineage of some of the individuals in question. But they did not sue Bolt for defamation – an ancient common law right and limit to freedom of speech intended to redress reputation damage. They sued under an Act that both had different standards by which to judge the harm and, which uniquely related to offences held by a group.

Justice Bromberg used the existence of Bolt’s errors and a (necessarily subjective) assessment of the ‘inflammatory language’ in some of those columns to bypass Section 18D of the Act – which offers some limited exceptions to 18C, including whether the comment is made in the public interest and in good faith. That legal judgment was his to make. But the Bromberg decision goes much further, explicitly endorsing not only the language and shape of the Act, but its intent:

In seeking to promote tolerance and protect against intolerance in a multicultural society, the [Racial Discrimination Act] must be taken to include in its objective tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free of pressure not to do so.

And a few dozen paragraphs later, he argued that, ‘In my view, even outside of political discourse, freedom of expression is not merely a freedom to speak inoffensively … But there are areas of discourse where incivility is less acceptable, including because it is more damaging to social harmony.’

The problems with the Racial Discrimination Act have been known for a long time. As far back as 1992, the IPA Review published Terry Lane’s critique of the racial discrimination restraints on speech, arguing that ‘It is impossible to see how racial harmony would be encouraged, improved or guaranteed by the imposition of penalties on those who express outrageous views.’ But Justice Bromberg’s decision makes it clear that the Act is explicitly designed to restrain specific viewpoints from being expressed, in pursuit of a specific – and, it might as well be said, controversial – goal. There is nothing legally new in the Bolt case. While Justice Bromberg was happy to endorse the social purposes of the Act, he seems to have kept within it. But it is a stark illustration of the still yet unbounded scope of the Racial Discrimination Act.

The Bolt case would be less concerning for freedom of expression if it wasn’t concurrent with an escalating political battle against press freedom. The relationship between News Limited papers (in particular The Australian) and the federal government has been openly hostile since the global financial crisis broke in 2009. The government’s Keynesian stimulus package has been dogged by waste and policy failure – facts which the press has been more than willing to focus on.

In response, the government and its supporters have, over the last two years, spent an increasing amount of time complaining about an overly-critical media and perceived flaws in political and policy coverage.

Politicians complaining about press coverage is one thing. Quite another if they do something about it. The British News of the World phone hacking scandal provided a pretext. When the scandal was reignited in July this year after it emerged that News of the World – owned by Rupert Murdoch – had hacked the phone of a murdered schoolgirl, the resulting media and political frenzy was global.

Despite no suggestion and no evidence to support the claim that such phone hacking had gone on in Australia, Julia Gillard nonetheless claimed that News Limited, the Australian arm, had ‘hard questions to answer’. Exactly what those hard questions were is not clear. The most obvious explanation is likely the real one: there were no hard questions. Instead, the Prime Minister saw the British hacking scandal as an opportunity to sully her critics in the media.

Gillard was, at least initially, circumspect about the policy consequences of her hostility to the press.

But if the relationship between News Limited and the government is fraught, it is nothing compared to the relationship between News Limited and the Greens. Bob Brown has described his press opposition as the ‘hate media’ because he believes they are unfair to his party. Since the News of the World scandal he has first hypothesized about imposing a government license for newspapers – a policy which has been absent in the Anglosphere since it was found to be tyrannical four centuries ago – and then having the government license individual journalists – presumably to weed out ‘irresponsible’ ones.

Wielding their power over Julia Gillard’s office, the Greens pressured the government to instigate a media inquiry. The purpose of the independent media inquiry, which was announced in September, is clear: to impose more government oversight of the press. Lobbying for the inquiry on the ABC’s Q&A, Greens Senator Christine Milne said that, ‘it’s time we had a good inquiry and certainly bias is going to be one of the things that certainly will be looked at.’ The independent Rob Oakeshott supported the push for the inquiry because of the ‘absolute rubbish’ that was being written about him.

There is already a series of serious policy reviews being conducted about media reform. No one denies that the challenge of the internet necessitates a rethink of the regulatory settings governing media and telecommunications. The Institute of Public Affairs has long argued that regulations like sport anti-siphoning (which give free to air television first broadcast rights to ‘premium’ sporting events), local content requirements (which impose mandatory minimums on Australian television and broadcast content), ownership restrictions, and much telecommunication regulation make little sense in a digital age where the boundaries between broadcast and media services are being blurred. Nevertheless, the government is already looking into that with a largely unheralded but hugely important Convergence Review, conducted by the Commonwealth Department of Broadband, Communications and the Digital Economy.

But it is clear that the purpose of the independent media inquiry is to regulate the content of newspapers, not conduct a needed policy reform inquiry. The terms of reference for the inquiry appear benign, but they are not. The inquiry was instructed to facilitate two distinct investigations. First, it was to look at the sustainability of media business models in the digital age. Considering the growing calls from many on the left for direct subsidies of ‘serious’ journalism, this is worrying in and of itself. But the second investigation was much more disturbing. The inquiry was tasked to study the ‘effectiveness of the current media codes of practice in Australia’ and ‘ways of substantially strengthening the independence and effectiveness of the Australian Press Council’.

The implication is obvious – the inquiry will look at ways to make the voluntary codes which govern media ethics into mandatory regulations.

It is good that media organisations develop their own ethical codes of practice. But it is very bad that the government believes it should do that for them. Governments are necessarily antagonistic to the press; our current federal government, perhaps more so than usual, but not more than, say, the Whitlam government. We should be very uncomfortable with the prospect of government regulators – perhaps a newly enlarged and empowered Press Council-monitoring, scrutinising, and legally punishing journalists and newspapers for perceived ethical breaches.

In a functioning democracy, the media is one of the primary ways by which governments are scrutinised. So governments should not be putting themselves in the position of defining what constitutes approved and disapproved commentary or journalism. This is a breach of freedom of the press. And it is fundamentally hostile to liberal democracy.

We can see how serious these proposals are by the way interest groups have reacted to the news of the independent inquiry. The chair of the Australian Press Council, Professor Julian Disney – which is, currently, paid for by voluntary contributions from the newspapers, and has no coercive power-welcomed both government financial support and the prospect of regulatory ‘teeth’. He told the marketing website Mumbrella that he wanted the Council to regulate website comments and ‘serious’ bloggers.

Disney told the inquiry itself he was concerned about the ‘cacophony’ of voices on internet comment threads: ‘You can’t have free speech if you can’t hear what’s being said.’ This appears to be more a complaint about vibrant democracy than unethical journalism. Groping around for a purpose that wasn’t simply an attack on the government’s critics, it heard some extraordinarily illiberal and anti-democratic views, by apparently mainstream people.

These are not the only threats to freedom of speech in Australia today. In the June edition of the IPA Review, I outlined the extraordinary call by the host of the ABC’s Media Watch, Jonathan Holmes, to have the government’s regulator enforce ‘balance’ on a number of climate sceptic radio hosts. In a Media Watch segment in March titled ‘Balancing a hot debate’, Holmes pointed out that hosts like 2GB’s Alan Jones, 4BC’s Gary Hardgrave and MTR’s Chris Smith tended to interview climate scientists they agreed with.

Fair enough – but you’d think, in a society which values freedom of expression, that was their prerogative. Nevertheless, Holmes suggested that this contravened the Commercial Radio Australia Code of Practice which insists that broadcasters must ‘present significant viewpoints when dealing with controversial issues of public importance.’ This regulation may be on the books, yet it is practically defunct. The left-wing activists GetUp filed a complaint-necessary for the Australian Communications and Media Authority to act-the next day.

It seems amazing to have to do so, but in 2011 we need to remind ourselves why freedom of speech matters.

The first issues paper of the media inquiry even asks what the purpose of a free press actually is – as if its existence is up for debate. The paper first asked whether the ‘marketplace of ideas’ theory assumes that the market is open and readily accessible?

The marketplace of ideas theory suggests that freedom of speech is desirable because the only way to come to the truth about a topic is to freely debate it – the ‘market’ for speech will ensure that the best and most true ideas float to the top, and wrong ideas fade and die. Then: ‘Are there alternative or preferable justifications for freedom of the media?’ There certainly are. Freedom of speech is a subset of a larger right – that of liberty of conscience. People should be at liberty to express what they privately believe (subject to small limits on defamatory speech and overt threats).

The ‘marketplace of ideas’ theory is high-minded and idealistic – imagining a world where the only public debate is academic, rational, and focused on coming to the ‘truth’ of any given proposition. And it implicitly limits freedom of speech. If speech is necessary to the functioning of a democracy or to truth-seeking, the marketplace of ideas theory provides a defence. If the speech is not necessary, then the theory offers no support. It provides absolutely no guidance about what to do with, for example, the anonymous blog comments which the Press Council and government would like to regulate.

It provides no guide to how policy makers should treat wrong ideas, orideas on which a consensus (dubious or otherwise) has formed. It gives an opening – which Media Watch and GetUp have taken advantage of – to restrain public debate by insisting on ‘balanced’ presentation of political issues. And it provides an opportunity for governments to restrain debate on issues when they feel they have more pressing social goals – as Justice Bromberg suggested in the Bolt decision.

The marketplace of ideas justification for freedom of speech is woefully inadequate. That the media inquiry can think of this as its only justification is deeply concerning. And it emphasises the challenge – not merely to resist illiberal violations of freedom of speech, but to demonstrate that freedom of speech is a value worth defending at all. While the threats may seem disparate – the media inquiry and the Racial Discrimination Act have their own origins and their own political supporters – the reaction to the threats in the last few months has revealed that freedom of speech is not at all safe in Australia in 2011.