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Free speech beyond the pale


Alan JonesThe 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 of offence is acceptable. Traditionally, where human rights are under discussion, the differing interests or rights protected are weighed against each other and against the potential harm caused by upholding each of the relevant rights being considered. There must therefore surely be a legitimate question as to what protection speech enjoys when its sole or primary purpose is to hurt or insult rather than to debate ideas, exercise religious freedom or air grievances.

It is for this reason that democracies frequently legislate against such phenomena as hate speech. Drawing the line is notoriously difficult: racial vilification laws and religious hate speech, to name but two, have been the subject of fierce debate of late.

Where comments — such as Alan Jones' attack on Julia Gillard or the French cartoons — are particularly designed to offend, there must be some question as to what legitimate purpose they serve.

Jones has argued that it is the backlash against his comments which is at fault — claiming that it is his own freedom of expression which is under attack. He is reported as saying that 'The hatred towards me, I've long learnt, stems from the views I express.'

Charlie Hebdo's editor has taken a different tack, claiming a broader societal good behind its actions, arguing in an interview with Deutsche Welle that its motivation is to 'fight every religion as soon as it leaves the private sphere and starts to influence politics and the public'.

Yet, as we have seen, the key point of the right to freedom of speech has historically been to protect the right to free and open discussions and the airing of grievances — whether these relate to religion or anything else. If a commentator or cartoonist has the right to insult others then the flipside is surely that his targets (and those who hear him) have an equal right and opportunity to make their hurt and outrage known — and to put an alternative view, if they see fit. This after all must be part of the robust debate.

In this context, it is worth noting that France (in which Charlie Hebdo has its home) has laws which significantly restrict religious expression — banning the prominent wearing of any religious symbols as well as clothing (such as Islamic headscarves) associated with the practice of religion. This seems inconsistent with the Enlightenment ideals of freedom of speech as guarantor of freedom of religion.

Against this background, claims that it is those who have been insulted who do not understand the value of freedom of speech reek of both hypocrisy and irony.

Freedom of speech is an extremely important value. For this very reason, it is worth reflecting why it is there and whether or not our attempts to invoke it say more about the intolerance of others or our own double standards. 

Justin GlynJustin Glyn SJ is a second year Jesuit scholastic studying theology and philosophy in Melbourne. He previously practised law in South Africa and New Zealand. He completed a PhD in international and administrative law in 2008.

Topic tags: Justin Glyn, free speech, democracy, Alan Jones, Muslims, Muhammed, Julia Gillard



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Existing comments

Alan Jones apologised for his comment. Those who vilified and personally attacked John Howard in public for many years have never apologised for their constant offense. The 'rights' to be protected from offense seem very driven by political correctness. And apologies are not 'heard'. I hear the whiff of totalitarian bully boy tactics in the anti Alan Jones campaign. The western bred totalitarian diktatura are having a frenzy. This is intellectual, media and cyber terrorism - monosyllabic howls of outrage by practitioners of personal attack and offense par excellence.

Skye | 07 October 2012  

Last week I signed an online petition calling for Alan Jones to be sacked. It was not a decision I made lightly. This is not the first occasion Jones has vented his outrageous 'free' speech at Gillard, but this time it hurt other people as well, i.e. her late father and her immediate family. When I think of Jones these words come to mind "For rhetoric he could not ope/His mouth, but out there flew a trope." (Samuel Butler) Tony Abbott is now in damage control after his numerous sexist, misogynistic outbursts towards female government ministers, in particular, Julia Gillard. Freedom of speech is very important to a civilised society. But all too often it can be used as a weapon instead of a force for good. And none of us can claim the high moral ground on this one.

Pam | 07 October 2012  

An excellent article. We have the right to express our views but in a manner that is respectful and tolerant. The decency of society is diminished when remarks are abusive and misogynistic. Any utterances that promote a culture of violence (and, in the Alan Jones example, violence against women) cannot go unchallenged.

Winsome Thomas | 07 October 2012  

With every freedom comes responsibility. No less so with 'freedom of speech'. We have a responsibility to be truthful. A responsibility not to be personally abusive. A responsibility not to incite hatred or violence. If, not, not only do we demean our audience and our subject we demean ourselves.

Tony W | 07 October 2012  

No, no no. The Alan Jones thing is not about freedom of speech. Jones was free to say what he said, but in doing so he offended against good manners, decency, the unwritten but accepted norms of civilised society. By doing so, he joins the "fans" who shout slurred racist remarks at footballers from the safety of the stand, the men in clefted shorts who shout obscenities at women from high scaffolding, the schoolyard bully who gathers his mates around him to claim territory. Ordinary, decent citizens would have nothing to do with such people, we would not invite them into our homes, we would avoid them at the pub or in the bus or on the street. It is a sad reflection of Australia that people listen to Jones and are prepared to defend him. And no, Skye, his rambling press conference was many things, but an apology it was not.

Frank | 07 October 2012  

An excellent and well balanced article. Thank-you. As I read this, I was reminded of the legal action against Andrew Bolt for his comments about "fair skinned Aborigines", which was instigated by very well respected Aboriginal academics and lawyers. The reality for all people is that we have a duty to think before we speak. As I delve deeper into what it means to be hospitable, I am reminded more and more of the call to love neighbour. Jones' actions continually demonstrate a lack of love for his neighbour. It is important to protect the principle of freedom of speech, but it is equally important to exercise such a principle with caution and care.

Mathew Crane | 07 October 2012  

Although stated as a right, the freedom of speech in really a privilege. And privileges carry a responsibility that included respectfulness.

Jan StJ | 07 October 2012  

Deat Skye: tut-tutting at political correctness (that straw man of the culture warriors) won't alter the moral accountability of Jones and other pundits on the far right. They all claim to uphold family values, for which the Ten Commandments are the paradigm. (Or, at least, that's what the Church teaches.) So, Skye, which two of the Ten doesn't apply to Jones: (a) Thou shalt not kill (with words), or (b) thou shalt not bear false witness (and trash a family's good name)?

Fred Green | 07 October 2012  

Few would oppose the principle of 'free speech' but there are other important factors that are almost ignored. An important one is 'fairness'. Alan Jones' opinions go out to many thousands, while most Australians are restricted to speaking face-to-face to very few, plus occasional contributions to 'letters to the editor' and suchlike. How can the situation be improved? The solution is simple in theory but unlikely to be adopted. It would be widespread adoption by the media of promptly giving reasonablly equal time or space to the various views on important controversial matters. For example, Alan Jones' assertions should be followed promptly by equal time for an opposing opinion. Sadly, such fairness is unlikely to be adopted in the commercial media.

Bob Corcoran | 07 October 2012  

Freedom of speech is one of the cornerstones of human progress, but too often this is mistaken for carte blanche to utter any old codswallop; is there not a commandment to not bear false witness against thy neighbour? Alan Jones has erred egregiously against this Commandment in relation to Ms Gillard and Ms Gillard's family. This is nothing new for Mr Jones; he has done likewise over many years in relation to science (the pinnacle of human endeavour in elucidating empirical truth). Of course, one also looks forward to the apology of John Howard for his war-mongering misrepresentations of Iraq. Australia has already suffered through Howard's words and actions; the invasion of Iraq diverted military resources from Afghanistan, ensuring that the Taliban would not be vanquished. But for the invasion of Iraq, the war in Afghanistan would have been won years ago. For his untruths, Mr Howard owes a personal apology to the family of every Australian killed in Afghanistan after 2006. For his untruths in relation to climate science, Mr Jones owes a personal apology to each and every Australian.

David Arthur | 07 October 2012  

Skye, since when is respecting the dead and those who mourn loved ones "political correctness"? Alan Jones stuffed up big time. One person's perceived "cyber-terrorism" is another person's sense of justice or balance. One can't be a total prick and expect the world to smile and cop it sweet.

AURELIUS | 07 October 2012  

What Jones said was despicable. However, it should not be seen to serve those who now wish to trash others - from whatever side of politics. The vultures hover over the fall out as they seek political advantage. And this is the new paradigm that was promised. Let us concentrate on what does now matter. Jones has apologised - we can debate its sincerity - yet no purpose is served by continually going on as his effort to apologise has not been accepted by Ms Gillard. That is her right. It was his decision to make an attempt to contact her. Let it be. Others offend daily and it has happened in the hallowed halls of parliament. After all, Nick Xenophon called a Catholic priest to account under the privilege of parliament for a crime that was not committed. One rule for one, another for the rest. Makes not one bit of commonsense to me.

Frank | 07 October 2012  

Freedom of speech is great as a concept and very important but it is very difficult to apply in the everyday world. The insulting, insensitive, out-of-order remarks by Alan Jones were deserving of criticism but one must wonder at the length to which the matter has been taken. Punishment by taking away advertising rights , forced return of a motor vehicle ;and what yet to come.? There are many things that have been said and done that seem much worse than the Joenes transgression , yet the response and consequences have not been as dire . The broadcast involving the young girl and associated sexual events caused only a ripple compared with the wave that Mr Jones' inappropriate remarks has produced.You can proscribe freedom of speech in different ways . The Jones saga may well illustrate one way.

Barry O'Keefe | 07 October 2012  

There are 2 different standards at work here. If anyone on the right side of politics says something the left perceive to be "nasty" then the left comes down upon them with all the weight they can muster. But when the left makes foul outrageous comments against the conservative side there is not a peep uttered by those who come down so hard on the people of the right of politics.

Trent | 07 October 2012  

It's easy to become jaded with these attitudes and comments - seems there's only McDonalds and Hungry Jacks, Coke or Pepsi - bland opinions, us versus them, left/right. People don't think or judge anymore - it's simply about what team you're on. Sad.

AURELIUS | 08 October 2012  

In the case of Alan Jones and tother shock-jocks of his t ilk,"freedom of speech" becomes freedom of hate speech. May the public backlash against this kind of behaviour continue long and loud.

Michelle Goldsmith | 08 October 2012  

Thank you Justin for a sane and balanced article. Shock jocks make their living by exciting their listeners with 'shocking comments' with no regard to truth or effect. Unfortunately even an intelligent man like Jones shows how much he despises his audience by consistently promulgating hatred in society. This is the main reason I will not listen to him. He has had predecessors and is currently training up a successor, frequently these people are less intelligent than he. I believe that the gift of intelligence carries a responsibility to use it for the greater benefit of society. Obviously Jones does not.

With his most frequent foray he insulted not only his usual prey but the Government of Australia and therefore every Australian. He increased his disrespect by claiming to apologise to the Prime Minister by bemoaning the effect his unfortunate words had on himself and claiming himself a victim to those he abused. An intelligent man understands the game he is playing. The right of free speech operates with the expectation of common respect of one's peers and one's society. It has never been intended as the right to endeavour to destroy people or organizations engaged in working for the common good.

Michelle | 08 October 2012  

I'm afraid an essay such as Justin Glyn's (balanced and pertinent though it be) on the broader issues involved in freedom of speech will be of little interest to the bulk of readers, listeners and viewers of the mass media.
Regrettably too it will not play a part, big or small, in promoting discussion within the catholic church.
The accompanying ES article "Backpedalling on Vatican 2" illustrates how the new insights of that Council were reined in by the stacking of curial departments and the stifling of debate.

Uncle Pat | 08 October 2012  

Michelle, what is the basis of your statement, that Alan Jones 'is intelligent'.

bernie introna | 08 October 2012  

Frank, the matter in relation to Nick Xenophon hasn't concluded as yet. We will surely know when it is.

L Newington | 11 October 2012  

We need to be very careful that some potential offence is not wildly over rated so that the offence becomes the point not the fact of the argument. Many love being offended as it gives them a platform to enhance their much loved victim status. Then the noise of their so called offence becomes the issue and no rational debate can occur.
Jones’s comments where just stupid and vicious personal attack, but Julia Gillard’s grief is not a topical, political issue open to debate.
When debate over topical issues is shut down because of offense, that is an issue, and I see it as a clear and definite tactic by some quarters.
Case in point; the recent comments about the homosexual lifestyle being more harmful to health than smoking. There was some much so called ‘outrage’ and ‘offence’ taken, that the very real issues of the mental health, suicide and disease were completely ignored, in the frenzy and delight in being offended.
Electronic media and social networking are in fact restricting debate so that the loudest and most ‘offended’ win out proclaiming the mindless ‘hate speech’ mantra without content being discussed.

As this is how debates are being waged we should be discussing whether this is really democratic and how intolerant will those who claim that virtue for themselves become.

Steve | 11 October 2012  

I saw the prime minister's outburst as an indirect win for women who have been at the mercy of the church, having to wear what's come out of the mouth's of narcissicic clergy and members of the hierarchy in day's gone by.
You won't hear about that in this inquiry, both instance brought me tears.

L Newington | 12 October 2012  

Personal offence is a new virtue. Action against Alan Jones seems pointless to me. We already knew what he was like and people who like him still do. I have not held any respect for those of his ilk for a long time. Of greater concern than freedom to say nasty things is the issue of balance in the media where ignorance is weighted the same as real knowledge.

Owen | 12 October 2012  

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