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Free speech beyond the pale

  • 08 October 2012

The French magazine Charlie Hebdo's printing of insulting cartoons of the Prophet Muhammad, the controversy surrounding Alan Jones' comments about the death of Julia Gillard's father at a Liberal Party function and the online airing of a film trailer insulting Islam have once again fired up the perennial debate about the limits of free speech.

All over the Western media, columnists are dusting off their Voltaire for his oft-attributed quote about disagreeing with what you say but defending to the death your right to say it.

Protestations about free speech, however, should be taken with a grain or two of salt. Even in America and other countries where the right to free speech is constitutionally protected, it is not absolute. As we were reminded just last week, child pornography is universally reviled and prosecuted.

Laws protecting reputation (think of the tort of defamation), and privacy, are standard, even in the most liberal of democracies, and the treatment meted out to Bradley Manning (criticised by the UN rapporteur on torture) is stark proof that even the US' famed First Amendment has its limits. As Glen Greenwald notes, internet postings praising attacks on Western forces or even highlighting issues with America's human rights record have led to terrorism charges being pressed against the posters.

Bearing all this in mind, it may be worthwhile examining exactly why it is that free speech has historically been seen as important. Traditionally, the key purposes of this right have been to protect the right to free exercise of religion, the right to free exchange of ideas and the ability to air public grievances (e.g. see Articles 9 and 10 of the European Convention on Human Rights and the First Amendment to the US Constitution). While Australia has no entrenched mechanism for the protection of human rights, there have historically been attempts to protect this right using the Constitution's protection of freedom of commerce (s.92).

As a protector of public discourse and freedom of religion, the right to free speech is plainly fundamental to a democracy. In this context, a great deal of speech should be tolerated, even if it may cause offence to some. A thick skin is, to a certain extent, the price of living in an open democracy.

This does not mean that any amount