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Should we have an absolute freedom of speech?

Sydney Morning Herald

Saturday March 26, 2011

JULIANNE SCHULTZ, WAJIHA AHMED, IAN COHEN AND OLIVER MARC HARTWICH

The exchange of free speech and ideas is vital in a democracy, but should it be balanced against the potential for harm? Four experts weigh up the arguments.The exchange of free speech and ideas is vital in a democracy, but should it be balanced against the potential for harm? Four experts weigh up the arguments.THE COMMENTATOR JULIANNE SCHULTZNO, we should not have an absolute freedom of speech. The word "absolute" makes me nervous.In the abstract, freedom of speech is desirable and essential to our way of life. Who can argue against it? History has taught us that civilisations and human relations advance when accompanied by the free exchange of ideas, information and intimacies.Look at the recent uprisings in north Africa. After decades of repressive regimes, a desire for freedom of speech, the essential prerequisite of all other civil and political rights, helped animate the courageous people who flocked to the streets.The information in the WikiLeaks cables showed that the on-the-street assessment of the corruption of the old regimes was shared by the diplomats of the dominant superpower. Access to this information emboldened brave people to more fully assert their rights as citizens. They amplified their struggle by swapping news and manifestos online, bypassing the compromised traditional media, to share their perspective with the world.Look at freedom of speech as it is exercised in that same dominant superpower, the one with a first amendment to guarantee it. There it verges on becoming corrosive. Exercised by an unconstrained media, voiced by commentators who seek to incite reaction with ever more inflammatory words, or by those tapping away behind screens of anonymity - hideous, hurtful things are said. This can make people fearful, angry and defensive. It does not turn the level of civilisation up.Finding appropriate boundaries to frame freedom of speech is one of the constant struggles. Judgment is essential. The right needs to be balanced against the damage that its unfettered exercise may cause. There are issues of security and personal safety, the value of truth and honesty, the need to treat others with respect. It is not true that only sticks and stones can hurt; ignorant, dishonest, malicious, corrupt words can also do enormous damage.It is quite right that there should be a perpetual struggle to push the boundaries of what can be said in a civilised society. What and when are the two key variables. As are questions of how children, reputation, national security, social cohesion, truth and privacy be protected.Legal restraints operate in conjunction with social norms that change with the times. They cool an absolute freedom, which could otherwise become toxic. Testing the limits while preserving security and respect is a useful enterprise. Freedom of speech is not absolute, but essential.Julianne Schultz is editor of Griffith REVIEW.THE LAWYER WAJIHA AHMEDTHE concept of "absolute freedom of speech" can be defined as publishing wholly what one feels or thinks. The issue I take with this in Australia is the potential for vilification and defamation of a group or an individual's beliefs. As a proud migrant, I brought my personal beliefs from my country of birth, Pakistan. Like many others who came to Australia, we all bring our individual points of view that create a rich and diverse society in which we seek to live without fear of reprisal.In Australia we ensure that these views and beliefs are respected and protected through statutory channels at state and federal level. We can write publicly what we believe in. We do not have strictures on what websites we may visit, for instance. Our government does not interfere with what we are allowed to know about the world. Such freedom from censorship must be protected, but this must occur within reason.I do not suggest we should be so restricted on our personal opinions by law that it may promote an abuse of process; for example, the blasphemy law in Pakistan, under which uttering a word or an action can be considered to be against Islam and attracts the death penalty. The recent assassination of the Governor of Punjab province, Salman Taseer, who openly stood up against this law to protect minority groups such as Christians is just one example of bigotry created by the law.The case of Catch the Fire Ministries in the Victorian Court of Appeal, on the other hand, is an example of a group found to have contravened the state's Racial and Religious Tolerance Act, among other statutes, by virtue of certain publications against Islam. The group argued that it had a right to express its points of view and beliefs.I suggest that the decision confirmed we should respect all persons and their beliefs without vilification or discrimination. To protect our right to belief without fear, I believe we should not have an absolute freedom of speech.Wajiha Ahmed is a lawyer, lecturer at UTS and Southern Cross University and a commissioner with the NSW Community Relations Commission.THE POLITICIAN IAN COHENTODAY NSW citizens march in lockstep or meander reluctantly to polling booths. This right to vote is an important element of our freedom of expression, a freedom that a large majority of the world's population can only envy - or take to the streets and risk deathFreedom of expression is a cornerstone of a healthy democracy. This freedom faces daily incursions, whether it is a government department threatening to remove services for public criticism or a corporation initiating SLAPP (Strategic Litigation Against Public Protest) suits against dissent, as typified in the Gunns 20 case in Tasmania.Julian Assange and WikiLeaks is another case. Railed against in the highest offices in powerful nations, Assange has exposed the hypocrisy and duplicity of international politics and diplomacy which has historically been concealed in the upper echelons of national governments and elite multinational corporations. We have at times allowed our courtrooms and parliaments to become instruments to silence legitimate public comment.Yet when we conceive of this freedom as a right without a corresponding responsibility requiring eternal vigilance and hard work, freedom of expression can be deployed in a way that is anti-democratic and unconscionable. Our media networks can be used to vexatiously destroy reputations and disseminate misrepresentation to assist the agenda of the rich and powerful.For a decade I was involved in defamation proceedings. I had called a developer some inappropriate and unfortunate names at a fund-raiser for an environmentalist and friend and was sued for defamation by the same developer. While the Court of Appeal awarded the developer $15,000 in damages, it was the $1 million-plus costs order that truly demonstrated to me the high price of freedom of expression.On the other hand I have also been the subject of unsubstantiated allegations by tabloid media that significantly damaged my reputation and standing in the community. When charges were dropped there was no real apology, acknowledgement or restitution of my reputation. Just a postage stamp-sized correction.Freedom of expression should be absolute. As a democratic society we have a huge responsibility to maintain free speech. The quality of global dialogue, human rights and those brave souls who step out of their comfort zone, motivated by their sense of justice, have a right to be protected while representing us.Freedom of expression should be sacred to all.Ian Cohen is retiring as a Greens member of the NSW Legislative Council.THE ACADEMIC OLIVER MARC HARTWICHWHEN everyone agrees with a proposition, you have to fear that it is meaningless. Freedom of speech is a case in point. The International Covenant on Civil and Political Rights, signed by almost every country, guarantees freedom of expression.The problems are in the fine print because even the covenant limits the scope of this right. Restrictions are possible for the respect of the rights or reputations of others as well as for the protection of national security, public order, public health or morals.So it is easy to be for free speech in principle. It is far less obvious what this will mean in practice.Some exceptions to free speech are straightforward. Nobody should have the right to cause a mass panic by crying "fire" in a packed theatre. But beyond that?There are numerous cases where it is not so clear to determine where the balance should lie between the protection of free speech and the protection of other rights.Take advertising, for example. Free speech does not only apply to political opinions but to commercial ones as well. Nevertheless, we would probably agree that especially advertising aimed at young children needs limits.That's fair enough. But what about advertising to adults? In opinion polls, most people say they are personally never conned by advertising. However, the very same people also believe that others regularly fall for misleading ads and therefore strict regulations were necessary.It's the same story with political speech. In some countries there are limitations on political opinions. In parts of Europe Holocaust denial is illegal. In Turkey a "denigration of the Turkish nation" can land you in jail.You would only support such restrictions on free speech if you believed that society could not handle it. However, in a society in which we all regularly have to make myriad decisions, why should we not also be able to decide how to respond to unpleasant or objectionable statements? Instead of banning them, we might choose to ignore or ridicule them.Realistically, freedom of speech cannot be limitless. Yet instead of relying on laws, perhaps we should trust common sense and civil society.Dr Oliver Marc Hartwich is a research fellow at the Centre for Independent Studies.

© 2011 Sydney Morning Herald

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