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 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 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.