August 21, 2018

Horse 2456 - Why Free Speech Shouldn't Be Absolutely Free

Thoughts? Surely there is a line which can be crossed and that should be clarified/ specified in law. I don't like "all or nothing" ...there are always shades in between which are better.
- Question posed via Facebook, 21st Aug 2018.

The newspapers attacking me are not newspapers in the ordinary sense. They are engines of propaganda for the constantly changing policies, desires, personal vices, personal likes and dislikes of the two men. What are their methods? Their methods are direct falsehoods, misrepresentation, half-truths, the alteration of the speaker's meaning by publishing a sentence apart from the context...What the proprietorship of these papers is aiming at is power, and power without responsibility – the prerogative of the harlot throughout the ages.
- Stanley Baldwin, 17th Mar 1931

Th' abuse of greatness is when it disjoins remorse from power.
- Brutus, Act II Sc2, Julius Caesar

When people call for an unfettered right to free speech, what they are giving their tacit approval to is an unfettered right to not be held responsible for their speech. They might not like to admit that but what they are asking for is that someone who has the unfettered right to free speech should not be held responsible for the damage they inflict.
This is kind of like giving a ten year old child a hammer and then letting them loose in a car park. You can almost guarantee that a nasty ten year old child will absolutely use it to do damage to cars. If you don't believe me, then use the people who are the most vociferous free speech advocates and ask yourself the question of whether or not you would have given the ten year old version of them a hammer and letting them loose in our imaginary car park. In general, the people who most want to call for  an unfettered right to free speech, want it because they intend to deliberately cause damage.

Someone once said that "Laws exist for the regulation, standardisation and protection of society"¹ and the principle of not giving a ten year old child a hammer and then letting them loose in a car park, has the more formal epithet of "the harm principle". The idea of the harm principle probably found its first legal expression in the Declaration of the Rights of the Man and of the Citizen of 1789, following on from the storming of the Bastille, the abolition of privileges and feudalism, and much discussion during the National Constituent Assembly during the French Revolution.
The Declaration had its initial drafts written by General Lafayette, Honoré Mirabeau and Thomas Jefferson; the latter who would take his spirit of fighting with words back across the Atlantic to America in the drafting of her own constitution.

La liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui : ainsi, l'exercice des droits naturels de chaque homme n'a de bornes que celles qui assurent aux autres membres de la société la jouissance de ces mêmes droits. Ces bornes ne peuvent être déterminées que par la loi.
- Article 4, Declaration of the Rights of the Man and of the Citizen, 27th Aug 1789²

Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
- Article 4, Declaration of the Rights of the Man and of the Citizen, 27th Aug 1789²

This would later find a voice in John Stuart Mill's philosophical work On Liberty:
That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.
The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
- John Stuart Mill, On Liberty (1859)

It is worth pointing out though that Mill was very much in favour of free speech. His argument is basically that free speech and open discourse is necessary for both social progress and for the advancement of intellectual ideas. His general position is that bad ideas and statements of falsehood should be allowed to be aired because people should be allowed to evaluate and abandon ideas.
Mill didn't think that offence or abuse should be limited because he didn't consider either of those things to constitute harm.

I think that he was wrong.

I think that it is absolutely possible to harm someone. I think that it is absolutely possible to destroy someone's life. I think that it is absolutely possible to destory someone's self-esteem; to the point that they will commit suicide. I think that John Stuart Mills proposition that bad ideas and statements of falsehood will be contested and evaluated in the arena of ideas is itself utterly false.
Furthermore, I think that offence and abuse should be limited because both of those things absolutely constitute harm.

Because the arena of ideas is not an equal playing field. The people who contribute to it have different levels of power and control and to deny that is to deny the very fabric of society itself.
The reason why I expect that John Stuart Mill would make such a basic error, is due to the very real fact of confirmation bias. Quite likely, the kinds of people that he regularly interacted with as a civil servant, political economist, and philosopher, would have shared with him, his three most basic qualities: He was English. He was white. He was a male. Those three things, in the context of the 1850s and 1860s, place him in the group of quite literally the most powerful people on the face of the planet.
It is interesting to see though, that while he was a Member of the British Parliament for the constituency of the City and Westminster, his ideas began to change. In 1869 he published an essay called The Subjection of Women, and as a member of the Liberal Party (which was so named because it was liberal in the classical sense), he was also the first Member of Parliament to call for women's suffrage. This means that even Mill in his own lifetime, began to recognise that different people who contribute to the arena of ideas have different levels of power.

Given that people do have different levels of power in the arena of ideas, and people have the very real ability to cause damage to each other and each other's lives, it therefore makes perfectly logical sense to restrain that power. The question then becomes one of to what degree should the restraints hold power back? Again, the harm principle is instructive:
- everything which injures no one else
- to prevent harm to others

This was also brought out by one of my favourite rulings on the subject, in James v Commonwealth:
A good draftsman would realize that the mere generality of the word must compel limitation in its interpretation. “ Free ” in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech ; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth ; it means freedom governed by law as was pointed out in McArthur's Case.
- James v Commonwealth (1936) 55CLR1³

Freedom should be governed by law. The aim of the law is the regulation, standardisation and protection of society. The harm principle dictates that it is the last of that triad which is the thing we're going for when it comes to the issue of placing restraints on speech. Again, where do you draw those lines?
Consider what is now arguably the most famous free speech restraint in Australia; Section 18C of the Racial Discrimination Act 1975.

The only reason that anyone cares about this was because of the 2011 Federal Court of Australia case of Eatock v Bolt, where Pat Eatock, a woman of Aboriginal descent, brought proceedings against Andrew Bolt and the Herald-Sun because of an article which had been published in 2009 entitled "White Fellas In The Black", and the court found against Andrew Bolt and the Herald-Sun.

Here we have an obvious case of a mismatch in power. Andrew Bolt who is a well known journalist and serial protagonist, has a platform in the Herald-Sun, Daily Telegraph, Adelaide Advertiser, the Courier-Mail, as well as on Sky News, formerly Network Ten, as well as on radio 2GB and 3AW. Pat Eatock, being a woman of Aboriginal descent, already has to contend with racism on a daily basis; in a country which has a very long and dark history of racism.

The words of 18C in question are:
(1)  It is unlawful for a person to do an act, otherwise than in private, if:
(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
- Section 18C, Racial Discrimination Act 1975

Firstly, an action in four daily newspapers which have combined circulation of 3 million, is hardly in private. Secondly, the material tests are twofold. There is a "reasonable likeliness" test; which has common law origins to at least the 1870s with the prototypical "man on the Clapham omnibus" who is deemed to be a reasonable person who would have acted based upon what they would have foreseen.
The fact that it is, suggests that the section is at least primarily directed to serve public and not private purposes: Coleman at [179]. That suggests that the section is concerned with consequences it regards as more serious than mere personal hurt, harm or fear. It seems to me that s18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society.
- Eatock v Bolt [2011] FCA 1103, Bromberg J 2011

It is for those reasons that I would respectfully agree with the conclusion reached by other judges of this Court, that the conduct caught by s 18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights
- Eatock v Bolt [2011] FCA 1103, Bromberg J 2011

It's pretty obvious that the courts have long since reached the opinion that free speech does have limits but that those limits don't extend all the way to mere personal insult. There have been cases where just using vulgar language to a policeman have gone by completely untouched by courts; on the basis that just swearing and random abuse doesn't of itself amount to tantamount damage. This is the harm principle in full swing.
It is worth noting that similar provisions exist in the Sex Discrimination Act 1984, as indeed are the provisions that "a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated"  but Section 85 points out that unless there is an express provision, just because something is unlawful, doesn't make it an offence at law.
All of this brings me to the actual video in question, in which Rowan Atkison delivers a speech as part of the Defend Free Speech campaign and in particular "Reform Section 5", which relates to Section 5 of the UK's Public Order Act 1986.

It should be pointed out that the Public Order Act 1986 came immediately after a turbulent period of racial tensions in the UK, and a series of race riots across Bristol, Brixton in South London,  Toxteth in Liverpool, Handsworth in  Birmingham and Chapeltown in Leeds.

The then House of Commons Sub-Committee on Race Relations  reccommended on the basis that there had been abuses by police basedon the existing structure of the so-called "sus law" in which anyone who was "suspect", which were mainly black people, Indian and Pakistani and other south asian people, and other ethnic minorities, were stopped and arrested on sight.

The aim of the Public Order Act 1986 as specified in the preamble was:
An Act to abolish the common law offences of riot, rout, unlawful assembly and affray and certain statutory offences relating to public order; to create new offences relating to public order; to control public processions and assemblies; to control the stirring up of racial hatred; to provide for the exclusion of certain offenders from sporting events
- Preamble, Public Order Act 1986

Specifically Section 5 said:
(1)A person is guilty of an offence if he—
(a)uses threatening [or abusive] words or behaviour, or disorderly behaviour, or
(b)displays any writing, sign or other visible representation which is threatening [or abusive],within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3)It is a defence for the accused to prove—
(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c)that his conduct was reasonable.

This act was set against a society where racial tensions were running high. Even the policeman in the comedy sketch that Rowan Atkinson refers to, was a demonstration of the abuse of this power. The comedy program Not the Nine O'Clock News was shown on BBC2 from 1979 to 1982; which was right at the height of the race riots across Britain.

I think that this is the very same thing that John Stuart Mill was suffering from, a case of confirmation bias. Rowan Atkinson of course realises that he has a place of privilege, however there is still a world of difference between a joke in a comedy sketch and even a vulgar one, and someone in a position of power exercising that power to deliberately inflict harm on other people.

I think that whatever right to free speech exists, should always be tempered with the expectations that a reasonable person who happens to be on the end of that might suffer harm. That harm might be on an individual basis or in the case of systemic racism, a case of harm which affects an entire group of people from a particular race, religion, sexual orientation or gender. You might very well have the ability to inflict mere slights upon someone, but when that line is crossed into causing harm, then we have a problem.
The other big point about having laws like the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, or Britain's Public Order Act 1986, is that they provide avenues for remedy once someone has been injured. That in itself is somewhat problematic because you might end up with vexatious litigants, but again the reasonableness test and the point of view of the "man on the Clapham omnibus" is a long established metric by which to judge that.

Free speech should exist but not absolutely.
There should be limits.
Those limits should be tempered by the possible harm which can be done.
There should be avenues for remedy.
It's reasonable to expect reasonableness.


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