The moral ambiguity of free speech


The cause of free speech draws passionate defenders and high rhetoric. It is associated with images of the struggle of oppressed people for democracy and of journalist martyrs killed for uncovering the truth of political or commercial corruption. 

Some saw the judgment made against Andrew Bolt, and the law under which it was made, as an undue infringement on the right to free speech. But it was notable that many of those who held this view also dissociated themselves from what Bolt had written. They regarded it as bad journalism. 

So it may be worthwhile to step back from the Bolt case and the question whether the law on which it turned was good law, to consider what kind of speech is ethically good or bad.  

Ethical reflection on communication is best begun by reflecting on its importance for human flourishing. Speech enables people to reflect on what matters most deeply to them, to discover the reality of their lives and world, to form and sustain relationships and to work cooperatively for common goals. When we communicate we reveal and shape ourselves. But we also help shape other people and our society for better or worse. That is why freedom to speak is essential. It is also why there is a public interest in the way people communicate.   

From this perspective, communication is good when it contributes to human flourishing. It is bad when it inhibits or stifles human flourishing. The qualities of good communication are evident in general terms, although elusive in detail. Good speech will normally be true, in the sense both that speaker and hearer are on the same page, and in the sense that when speakers assert something to be true they are seeking the truth and attend to the evidence for their claim. 

If it is to build good relationships and contribute to society, communication must also be respectful both of the interlocutor and of the people who are the objects of conversation. Respect is due both to individuals and to racial, ethnic or other groups within society. Without this respect the building of a prosperous and harmonious society is hindered. 

These qualities of ethically good communication may seem to exclude conflict. But because the search for truth is at the heart of communication, robust argument is essential to it. Good communication also demands that corruption and misconduct in public life must be revealed, even if this diminishes the reputation of those responsible. This is in the public interest. But the destruction of reputation must be a consequence and not the goal of communication. Such serious consequences, too, make more onerous the onus of checking the truth of one’s claims.

Conversely communication that is untrue, lacks respect, is careless with the truth and creates division instead of harmony in society by targeting particular groups is bad communication. 

 These general principles also apply to the media. There the stakes are higher, because the voice of media outlets is much louder than that of private individuals and of underprivileged groups. Bad speech can destroy good reputations and lives without redress. 

By these criteria much communication in Australian public life is bad. It displays no respect for truth or for the persons who represent the opposed party. It is about shouting louder and more destructively.  That is also the case with much comment in the mass media. Many commentators ridicule and belittle those they criticise and are economical with the truth. The prejudice and animus that they encourage entrench prejudice against needy groups and hinder the building of a cooperative and compassionate society. 

Andrew Bolt’s article was simply an egregious example of such bad communication. It was indefensible on ethical grounds. Indeed, those who defended it generally implied that public discussion is an ethics free zone. They argued either that  everything must be allowed in public debate, that respectful and reflective writing are not economically viable, or that the public interest is identical with what the public are interested in. These arguments do not represent the cry of the oppressed for free speech but the claim of the powerful for unrestricted power. 

Whether particular legal constraints placed on communication are wise and helpful to society remains an open question. Certainly the imbalance between the power of the media and that of minority groups in society, and the damage that abusive speech can have on the lives of members of these groups, form a prima facie case for some legal controls on speech that embitters differences in society.  But laws must be effective and focused as well as well intentioned. In my judgment, the opponents of the law under which the Bolt case was brought have yet to make a persuasive argument.

Generally speaking, however, control over bad behaviour is better exercised by manners than by legislation. If those who speak or write sneeringly, demeaning their subjects without respect for truth, and the editors and the proprietors who publish them, were regarded with the same silent distaste as might be someone who made a habit of breaking wind noisily during the slow movement at a concert, that might be more effective than the strongest of laws.  Bad speech would then remain free, but it would have appropriate social consequences. 

Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street. 

Topic tags: Andrew Hamilton, Andrew Bolt, free speech.journalism, human rights, ethics, social communication



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Existing comments

Thank you Andrew; a just and insightful reflection

Anne Nolan | 06 October 2011  

This is getting even scarier. Andrew, when you say that Bolt's article was "indefensible on ethical grounds" could you at least preface it with: "In my opinion"? Should you do that, then it will be clearer that you want everyone to accept your particular ethical sensibilities and framework which, believe it or not, may be different to those of others. That is why free speech in matters of opinion should be an absolute right. You then proceed with: "Indeed, those who defended (the article) generally implied that public discussion is an ethics free zone".

This is just wrong. I don't defend the article and I know others who found it offensive - but I do defend free speech which, after all, on matters of opinion, is about expressing thought. You then leap to: "They argued either that everything must be allowed in public debate, that respectful and reflective writing are not economically viable, or that the public interest is identical with what the public are interested in".

The latter two are 'straw men' in any discussion of free speech as the expression of thought. Personally, I plead guilty to the first charge, however, as I do believe that "everything must be allowed in public debate". That is to say, all opinions, whether offensive or not, should be allowed to freely compete. We cannot advance intellectually without a free exchange of ideas and it's not up to you, or the state, to police that process of exchange. Section 18C should be repealed.

Barry York | 06 October 2011  

We all must trying to achieve true equality for all Australians. Equality means that there is no discrimination based on race and ethnic back-ground. Whilst we have a system in which so called “positive” discrimination is allowed, we will racial tension. The situation is often highlighted in rural areas, where children with parents with the same income but of different racial background receive different treatment. Free speech means that people can talk about inequality and injustice, even if it does not please the beneficiaries of such inequality. It seems that freedom of speech is ok as long it does not apply to people questioning the political correct views on the environment, moral values, welfare and refugee industries. Nazi Germany did not become a dictatorship overnight but was led to it by “political correctness” of the times.

Beat Odermatt | 06 October 2011  

Free speech is all very well, but commentary which purports to pertain to the real world cannot contain errors of fact.

There's a genre for writing that contains errors of fact - fiction.

Bolt has written fiction, His unforgivable error is to pretend that what he has written in some way pertains to the world of reality. As such, it is pernicious nonsense, no more and no less.

That said, the court erred in not requiring Bolt to write an article of equal size as the offending article, in which he sets out the errors of fact in his earlier article. The Herald Sun would be required to print Bolt's new article, according it no lesser prominence than the fallacious article.

Having explained to his readers the falsehoods of his earlier piece, Bolt would then be free to present his opinions. It is incumbent on Bolt that his opinions be informed and constrained by the truth.

David Arthur | 06 October 2011  

Hear, hear Andrew!!!! Well said!

Nathalie | 06 October 2011  

In my opinion Barry York is a [choose whatever offensive term you like] and it's because of his [choose a race or ethnicity] background. You can't expect people of his background to have any brains in my opinion. He supports absolute free speech because he stands to gain [choose again] from taking that view, in my opinion.

Let's all gather outside his house [ring me for his private address] and we will chant freedom slogans all night [so long as we make it clear that these are only our opinions]. In my opinion, he is a charlatan posing as a free speech advocate but he's only doing it to draw attention to himself, in my opinion.

In my opinion Barry York deserves to suffer the worst extremes of viligication. I wish I had deep enough pockets to run a campaign in the Herald-Sun day after day because, in my opinion, that is the only way my opinion would have potency.

Frank Golding | 06 October 2011  

David Arthur, Do you really want a court to decide on errors of fact? Can't the free exchange of ideas do that? Bolt has already acknolwedged some factual errors and he claims these do not diminish his argument. I'm not of his outlook, far from it, but isn't it wrong that he cannot respond to your claim of his view being based on 'fiction'? The two offending articles have been removed from the Herald-Sun site, at the order of the judge - we cannot even refer back to them. And, btw, there's a difference between factual errors in an opinion piece and the whole piece being fiction. This is something for debate rather than state intervention.

Barry York | 06 October 2011  

Frank Golding thinks I'm a charlatan - is this an argument against what I've argued here? Frank, I won't run off and seek to suppress your offensive view but I will continue arguing that free speech isn't only for those with whom one agrees. You can address that argument or continue to make yourself look both silly and incapable of debate.

Barry York | 06 October 2011  

Which is the most important leg of a three-legged stool?
In publication of opinions the three essentials are Free, Fair and Factual.
Defenders of Andrew Bolt stress 'Free', but is it fair that his opinions (or those of his newspapers)are printed hundreds of thousands of times? And frequently?

Bob Corcoran | 06 October 2011  

It seems like Frank Golding can not tolerate anyone having an opinion different to his opinion.

David Clements | 06 October 2011  

Andrew, your essays are always thoughtful and persuasive. This one, in particular, with its witty and telling final argument. Thank you.

Rose Marie Crowe | 06 October 2011  

Barry York and David Clements seem to have no understanding of irony (in my opinion). Barry, you're not a charlatan(in my opinion). I was merely trying to exemplify what can happen if I exercise my right to free speech unfettered. My view was, as you say offensive - and deliberately so. Under your proposed absolutist position, I can malign, vilify, lie, insinuate false motives and otherwise besmirch your good reputation - not to mention threaten your privacy. And your redress? You would have no legal rights. If you have access to publication in the same place, you can try to counter my slurs; but if I run the publication I'm under no obligation to give you space. Perhaps, if I want to give the appearance of being fair, I could run a short rebuttal from you on page 38 (as against my scurrilous piece which ran on page 3).

There are perfectly good reasons why democratic societies place limits on free speech through laws on defamation, trespass, fraud, false advertising, sedition, privacy and so on.

Frank Golding | 06 October 2011  

I was playing along with your irony, Frank.

Barry York | 06 October 2011  

Andrew, you often refer to things which contribute to "human flourishing" as good. Would you please consider writing one of these pieces on that topic: what constitutes human flourishing?

Barry York, if you want to read the offending articles you can go to the Austlii website, where you will find the articles attached to the end of the judgment. You also haven't addressed the power imbalance between the owners of the media, and the individual seeking to correct wrong things that have been said about them by people employed by those conglomerates.

Russell | 06 October 2011  

Russell, I'd rather be able to read them in the newspaper in which they were published and not be denied that opportunity because of a judge's ruling. The plaintiffs in the case could easily have had their arguments against Bolt published in the Fairfax press, aired on ABC radio and TV, and perhaps in the Herald-Sun itself. (They didn't try this option, as far as I am aware). But I think what makes the issue of free speech different today is that we have the Internet, which is breaking down the established media's position.

Frank Golding's last comment misses this point. Does he, or anyone else, really think it's possible to control free speech that is communicated via the Internet? I know the current right-wing social democratic government in Australia wants to give it a go (and it has some very nasty models to follow overseas) but it just isn't going to happen because it's not possible. This is where absolute free speech will prevail - for better and worse.

Barry York | 06 October 2011  

There is no such thing as completely free speech. Ask Frederick Toben.

Ask all those people jumped on from very tall buildings who dare to question anything about the holocaust or Israel.

In this case Andrew forgot a teeny little thing called the white out the black policy enacted by white people.

And Barry York, even opinions have to be based on fact and not simply be made up rubbish.

Marilyn Shepherd | 06 October 2011  

Well said, Andrew.
I have the impression that many Australians are confused about the meaning of freedom of speech. Might a contributing factor be that Australia has no bill of rights?

Patricia Bouma | 06 October 2011  

Your support of the decision is frightening. How can anyone support the contention that what offends someone should be off limits? Everyone gets offended some of the time. I can think of a range of things religious leaders of Christian and other Faiths say that certainly offend people and therefore, according to the Justice Bromberg's ruling, could get these leaders into hot water. Discriminating against people based on their Race should never be acceptable and that is what I thought the Racial Discrimination Act was designed to guard against but the 1995 amendments have dangerously broadened this Act's scope to include things that would offend.

Peter Marendy | 06 October 2011  

What is it about the phrase 'free speech" that seems to cause people to leap to one pole of opinion to another? Why is it apparently so difficult to engage with Andrew's argument in the middle ground he explores with such subtlety and respect for nuance? Barry, in my opinion you didn't really read or understand the article. My evidence for this lies in your posts, where you apparently - see how careful I'm being - attribute to Andrew a desire to quell freedom of speech, especially where the argument runs counter to his own.".. you want everyone to accept your particular ethical sensibilities and framework which, believe it or not, may be different to those of others...." Really?

Joan Seymour | 06 October 2011  

Thanks for your comments, Barry. A couple of clarifications in response, and some reflections on the major point that seems to divide us.

When I described Bolt's piece of writing as ethically indefensible, I did so in the light of the ethical framework that I sketched. I believe this framework to be true, and the judgment on Bolt's writing to follow from the framework. I see this as a judgment, not an opinion. Of course its truth is subject to reasoned debate, and that should always be free.

My remark about the 'ethics free zone' applied to arguments made in the media by people who approved of Bolt's article. I simply gave examples of these arguments. Your own argument for free speech, of course, is quite different from those I described.

Finally, on the point at issue, I am also sceptical about the value of law that limits free speech. It is difficult to make it both narrowly focused and effective. But, given the imbalance of power between writers with access to mass media and people whom they criticise, are you content to see the loss of reputation and the damage to self-esteem incurred by individuals and members of groups subjected to false assertion and innuendo as simply collateral damage in the cause of free speech?

I believe that free speech and respect are both important values, and both are anchored in human dignity. That does require protection in society.

Andy Hamilton | 06 October 2011  

Oh, well said, Andrew; and even better defended, Frank Golding! All other things being equal, no one would object to Bolt having his say.

However, clearly equality has nothing to do with his daily diatribes, which have disenfranchised many of a job or a reputation, because their paymasters have been intimidated into reacting to his scurrilous public attacks, invariably without the right of reply.

The right to free speech, then, must rest on an explicit, rather than a fictitious assumption of equality, such as might be assumed within a right of reply, otherwise it becomes the very opposite of what its protagonists, in this instance, seek to defend.

Argued in such terms, Bolt is a bully and a thug and got his just deserts, largely through the prosecution brought against him to expose the facts that he laundered to suit his rant.

Arguably, a court intervention would not be necessary if opinions such as Bolt's were always accompanied by a right of reply, as in the instance of Andrew's standard editorials.

Where no structure exists to give effect to such equality of expression, free speech can hardly be argued to exist and legal redress must be made available to victims.

Michael Furtado | 06 October 2011  

"From this perspective, communication is good when it contributes to human flourishing. It is bad when it inhibits or stifles human flourishing."

I think that is not enough or it can misguide. It can be used as a purpose to justify whatever they want to do or say.

Rather we must have a clear outline (or rules) of a good speech. And the purpose must be good for all too.

Just telling the truths is not enough. Must be good and must be beneficial for "human advancing".

If humanity is lost in the speech or writing, that's a "crime against humanity"

AZURE | 06 October 2011  

"Until lions have their historians, tales of the hunt shall always glorify the hunter."

- African proverb

AURELIUS | 07 October 2011  

Thank you, Andy. I am intrigued at how often "freedom of speech" is presented as an absolute good. No one would deny its importance, but equally, there seems little room to argue that it should be unqualified.

No poster here appears to suggest that defamation laws or those prohibiting child pornography should be repealed. There are forms of speech which are not free - for good reason.

Most human rights are limited by other rights - very few are absolute. Since rights-determinations involve a delicate balancing of people's interests, this is not really a surprise.

Defamation is a good example: it is no coincidence that Justice Bromberg referred liberally to defamation analogies in interpreting s.18 of the RDA. Here one might ask: what of the rights of those insulted by Bolt's articles to freely express their cultural values?

I suspect that Patricia is right when she suggests that we would be more used to this balancing process if Australia had some kind of human rights charter or bill and we got to see the process at work more often.

As Andy notes, the role of the media is vital, in protecting free speech, but also in education. Sadly, sensation sells!

Justin Glyn | 07 October 2011  

Barry York asks me "David Arthur, Do you really want a court to decide on errors of fact?" FYI, Barry, courts decide on truths and untruths all the time. It's part of their job.

"Can't the free exchange of ideas do that?" Barry, what fantasy cloud do you live on? Bolt gets his ideas widely propagated all the time, via his privileged position on a Murdoch mouthpiece.

"Bolt has already acknowledged some factual errors and he claims these do not diminish his argument." Bolt acknowledges 'some' errors of fact? He should write a formal statement acknowledging those errors, plus any and all errors that the court identifies. He claims that these do not diminish his argument; well, let's see how his argument reads with the errors removed and the correct facts inserted in their place.

"... but isn't it wrong that he cannot respond to your claim of his view being based on 'fiction'?" I would welcome Mr Bolt posting a comment to this page. Regarding his view being based on 'fiction', the court has found errors of fact underlying his views. Ergo, his views are based on fiction. That's the definition of fiction.

David Arthur | 07 October 2011  

Barry York continues: "The two offending articles have been removed from the Herald-Sun site, at the order of the judge - we cannot even refer back to them." In the absence of the remedy I propose, Barry, the removal of Bolt's piece is the minimum response. I remain of the view, however, that it would be vastly preferable for this sort of pestilence to remain fully exposed in the light of public availability, so that we may all read it for what it is - a load of misinformed cobblers.

"And, btw, there's a difference between factual errors in an opinion piece and the whole piece being fiction." Logically, Barry, any and all falsehood needs to be corrected so that its taint is eliminated. Otherwise, the piece remains propaganda - and we wouldn't want Mr Bolt to be seen as a propagandist, now would we?

"This is something for debate rather than state intervention." I've hear word-mincing right wingers wanting "debate" on all sort of issues, most frequently on climate change. On that issue, it's not a 'debate' they need, it's an evening class on atmospheric physics.

BTW, courts are part of "state intervention" only where laws are unjust.

David Arthur | 07 October 2011  

Free speech is allowed. Opinion is allowed. Offence is not. When making public statements perhaps one should shelter in our houses of parliament where privilege prevents any lambasting of the accusers. Look at the mess Nick Xenophon has caused re accusations against priests. Bolt's column was opinion - not based on fact. Xenophon's was not fact - only a version of what he chose to perceive as truth - but not enough conviction of that truth to proclaim it in the open media. How does this work?

We have strange and worrying standards emerging in our land.

Jacki | 07 October 2011  

Well said Andrew. I thoroughly agree with you!

Martyn Smith | 07 October 2011  

Well said Andrew.

Rosalie Toner | 07 October 2011  

Certainly agree will your general point about "good" and "bad" communication. Oh that there could be more "good". But in this case we have a law which has been invoked. So the focus, I think, has to be on the law, and whether it has been broken. One judge has decided it has. Perhaps it would be worthwhile for there to be an appeal to the High Court so that hopefully boundaries can be definitely confirmed. I'm certainly for "social consequences". Perhaps the legal action will be ultimately beneficial if it produces, as it already seems to have done, the ventilation of various points of view about "good' and "bad" communication, and free speech generally. And even the specific topic on which hopefully Bolt was (badly) focussing.

David O'Halloran | 08 October 2011  

There is a good article about the making of Bolt by Anne Summers in the latest edition of "the Monthly"

Ginger Meggs | 10 October 2011  

Anyone can challenge my Aboriginality but be a man and say sorry when your wrong, I learnt that as a kid. Australians think its an advantage being Aboriginal but none would swap shoes with me, they are the dominate culture and thats why we have laws like this to protect minority groups, we all live under your system with no room for outside culture. It seems funny that a law to protect minoritys from dominate culture racism is removed because the dominate culture lost a case, thats a dictatorship.

This country has been ruined by the racist and the bigots. A whole bunch of imigrants say other cultures are not welcome. So racist they change laws when it doesn't suit. a lot of liars claiming its about free speech but he could write the same article without being lazy and include facts and there would be no problem.

There are a few examples where free speech is infringed but it doesn't protect racism so Australians dont care. support the Palm Island people to overturn a gag order to protect a violent police officer that inflicted car crash injuries to a person in his care, Or only racist free? speech

Sam | 13 October 2011  

Sam, I agree with you that that gag order concerning the police should be overturned. Free speech should mean such an order would not have been imposed in the first place. Measures that restrict free speech are generally used to protect the rich and powerful. This is where quite a few of the contributors to this discussion are wrong, in my opinion. They're also wrong - a few of them - to assume that Aboriginal people are victims rather than active agents shaping a destiny. The best way to counter Bolt is by more free speech, not less. Marcia Langton's response to the content of his article in 'The Age' shows how this can be done; but, of course, I disagree with her apparent support for Section 18C.

Barry York | 13 October 2011  

I am late to this discussion but in light of the continuing propaganda from The Australian re 'freedom of speech' I make the following observation. With every freedom we enjoy there is a corresponding responsibility. The freedom to drive a car is predicated on obeying the road rules, driving safely and with consideration for others. Freedom of the press along with freedom of speech more generally carries with it responsibility to be fair and honest in its dealings with individuals and institutions i.e. to act ethically.

News Limited as exemplified by the “News of the World” scandal demonstrates it is an unethical organisation so why would anyone be surprised that it employs someone like its patsy Andrew Bolt to bolster its sales. News Limited is not interested in ‘freedom of speech’ it merely wants the license to say or do whatever it takes to maximise profit regardless of truth, integrity, decency or respect.

Tony W | 23 October 2011  

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