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Day to Day Politics: Free Speech or Licensed Abuse

Monday 23 October 2017

Within the debate on Marriage Equality there exists this silly assumption that everyone will lose their right to free speech. I wrote the following article back in 2013. It shows how people can be effected by the excesses of too much free speech.

Most Australians would never have heard of the Westboro Baptist Church. It is a church of hate that is anti almost everything socially progressive. However it saves its most vitriolic and vile hatred for gay people, Catholics and Jews.

On a regular basis they picket the funerals of gay service men. Although they don’t limit themselves to gays.

In fact, WBC members say “God’s hatred is one of His holy attributes” and that they’re picketing is a form of preaching to a “doomed” country unable to hear their message in any other way.

An observation

“We will never truly understand the effect Free Speech has on an individual until we have suffered from the abuse of it.”

In 2011 they picketed the funeral of Matthew Synder with placards like “Thank God for dead soldiers,” “You’re Going to Hell,” “God Hates the USA/Thank God for 9/11,” and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men. The fact that Matthew was not gay was irrelevant because the churches founder and homophobic Pastor Phelps (he died in 2014) believed that God was killing American soldiers as punishment for the nation’s sinful policies.

Now Matthews father Albert took exception to this malevolent behaviour by a Christian Church. After all he was suffering the realisation that is every parents nightmare: The death of a loved child. And the personal grief must have been an ordeal in itself, let alone the added agony that these protests evoked.

So he sued Phelps and the church for intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.The federal appeals court in Richmond, threw out the verdict and said the Constitution shielded the church members from liability. The Supreme Court agreed saying that Quote “a grieving father’s pain over mocking protests at his Marine son’s funeral must yield to First Amendment protections for free speech” All but one justice (8 to 1) sided with the fundamentalist church that has stirred outrage with raucous demonstrations contending God is punishing the military for the nation’s tolerance of homosexuality.

An observation.

“People often demand free speech to compensate for the freedom of thought they rarely use.”

Some extracts and views from the judgement.

Chief Justice John Roberts said in his opinion for the court, protects “even hurtful speech on public issues to ensure that we do not stifle public debate.”

The ruling, though, was in line with many earlier court decisions that said the First Amendment exists to protect robust debate on public issues and free expression, no matter how distasteful. A year ago, the justices struck down a federal ban on videos that show graphic violence against animals.

In 1988, the court unanimously overturned a verdict for the Rev. Jerry Falwell in his libel lawsuit against Hustler magazine founder Larry Flynt over a raunchy parody ad.

Justice Samuel Alito, the lone dissenter, said Snyder wanted only to “bury his son in peace.” Instead, Alito said, the protesters “brutally attacked” Matthew Snyder to attract public attention. “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he said.

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and as it did here inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker,” Roberts said.

Snyder’s reaction, at a news conference in York, Pa.: “My first thought was, eight justices don’t have the common sense God gave a goat.” He added, “We found out today we can no longer bury our dead in this country with dignity.”

But Roberts said the frequency of the protests – and the church’s practice of demonstrating against Catholics, Jews and many other groups – is an indication that Phelps and his flock were not mounting a personal attack against Snyder but expressing deeply held views on public topics.

While distancing themselves from the church’s message, media organisations, including The Associated Press, urged the court to side with the Phelps family because of concerns that a victory for Snyder could erode speech rights.

He said it was possible he would have to pay the Phelps’s around $100,000, which they are seeking in legal fees, since he lost the lawsuit. The money would, in effect, finance more of the same activity he fought against, Snyder said.

I have been following the frequent outlandish behaviour of this church and its leader for some time now and I often shudder at its evilness. I also wonder at what inclines judges to make these sorts of judgments and I also despair at the elevated prominence free speech plays in making them. And how human dignity can be devalued to such utter unimportance.

I am shaken by the insensitive calmness of those seeking to uphold the right to free speech. I remember on Q&A once I watched George Brandis try to make a case for free speech by saying that we should be judged by what we allow people to say rather than by what we don’t.

How simplistic. That people should have the right to insult, harass, humiliate or offend simply because it is their right to freedom of expression is alarming. And they need to be protected by law in doing so. This is why we endure the likes of News Ltd, Andrew Bolt and Alan Jones.

What is missing here is not the individuals right to free speech, but the way in which he/she does so. If we live in an enlightened collective (society ) then what does the individual owe to the collective. In the same way that labour comes before capital, collective rights and freedoms must come before the individuals right to free speech.

And the individuals right not to be abused by free speech surpasses the individuals right to use it. Maggie Thatcher is famous for her statement “There is no such thing as society. There are only individuals making their way” (Paraphrased) This of course is completely wrong because the individual cannot exist outside of the collective and its morals and ethics. Therefore, for the collective to work harmoniously individuals must be constrained by the ethics of truth and decency otherwise free speech is not really free speech. It is no more than licensed hate.

In Australia (and by comparison the USA) the pedlars of verbal violence and dishonesty are the most vigorous defenders of free speech because it gives their vitriolic nonsense legitimacy. With the use of free speech, the bigots and hate-mongers seek to influence those in the community who are susceptible or like-minded. The original intent of free speech was to give a voice to the oppressed and to keep governments honest. In the United States, the first amendment is now used as a justification to incite racism, validate hatred and promote both religious and political bigotry. In a democracy the right to free speech is given by the people through the parliament. However it is impossible to legislate decency. “Therefore, it should be incumbent on people to display decorum, moderation, truth, fact, balance, reason, tolerance, civility and respect for the other point of view.

After all, the dignity of the individual (or individuals) within the collective is more important than some fools right to use freedom of speech to vilify another.

My thought for the day.

“An enlightened society is one in which the suggestion that we need to legislate ones right to hate another person is considered intellectually barren.”

 

28 comments

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  1. Trish Corry

    “And the individuals right not to be abused by free speech surpasses the individuals right to use it. Maggie Thatcher is famous for her statement “There is no such thing as society. There are only individuals making their way” (Paraphrased) This of course is completely wrong because the individual cannot exist outside of the collective and its morals and ethics. Therefore, for the collective to work harmoniously individuals must be constrained by the ethics of truth and decency otherwise free speech is not really free speech. It is no more than licensed hate.”

    Excellent critique. What a different world we would have if more people understood and applied the above.

  2. OPPOSE THE MAJOUR PARTIES

    I am yet to understand the anti marriage equality argument that allowing marriage equality will limit free speech. Unlike the USA, Australia has no bill of rights which enshrines a broad principle of free speech. Australian free speech rights rely upon the common law, which is limited by defamation laws etc, and by the implied guarantee freedom of communication on gov and political matters in the Constitution.
    The Constitutional right is inherently narrow as it applies only to speech on political and gov matters. The human rights laws in Australia prohibit discrimination on only a limited set of things – education, employment and housing. Marriage is not on the list of prohited discrimination matters. People are free to discriminate in relation to things not on that short list including in relation to marriage. There is only a Racial Vilification Act and no gender or sexual preference vilification acts. You cant sue someone for emotional distress alone in Aust and obviously that is the case on the USA as well given the outcomes of the cases referred to in the post. Hence, people will still be free to voice a discriminatory opinion on marrital relations even if marriage equality is legislated. what exactly is the point they are making? The free speech argument voiced by the opponents of marriage equality, such as the lying and misleader of parliament and international war criminal little Johnny Howard, is a complete smoke screen and a red herring intended to scare and mislead the voting public as legislating for marriage equality will make no difference to free speech rights in aust. It’s a completely deceptive, nonsensical and vacuous claim to say it will. So what is their point exactly?

  3. OPPOSE THE MAJOUR PARTIES

    can’t agree with the view that the individuals right not to be abused by free speech should surpass the individuals right to use it. so you want to legislate against bad manners do you? that would be discriminatory in itself against people of non mainstream social origins. that would give precedence to one set of social values over another and which values would likely be rooted in a class position. should we all become polite little petite bourgsoise middle class darlings? who is to determine which system of values and set of niceties is to be preferred by the laws prohibiting offensiveness. where does it stop? should vegetarians have the right to stop people eating or selling meat in public because they find it offensive. should we ban farting in public and impose fines and prison terms on farting offenders. i suggest you read up on the harm principle. laws should only prohibit conduct that harms people physically or economically. if someone is merely ‘offended’ by a statement or conduct then the issue may be their own emotional immaturity. once you start prohibiting anything anyone considers ‘offensive’ you create an iron cage of regulations and law that prefers one value system over another. not interested in that in the slightest. we already have racial vilification laws but they require more than mere ‘offensiveness’. Thatcher was a nut job so why quote her.

  4. wam

    The 1st was 1791 and gave freedom from the laws of congress to religion. Sadly, like the 2nd amendment, it has been abused. Both need modernising but no chance for modifying freedom to abuse, especially in Aust, when people hide behind god or, like keating and the rabbott, use god to justify opion.
    However an individuals right to the 1st at a state level seems questioned by the gaoling of Kimberley Davis for using her catholic faith to refuse to marry gays. The solution was her deputies would take the ceremonies for gays and the certificates would not have her name on it.

    Corrie the Lord is usually loose with Thatcher’s words on society but Will Haydock and others put them in context.
    My family had 6 holidays to europe staying with my mother’s relatives between 73-90(15 months in london 89/90) When we went to the continent the difference was marked.
    One aunt lived in stevenage and the people were poorly dressed for the climate, the goods in the shops were nothing like Australia cheap and nasty but expensive.
    The other two lived in Scotland(largs and perth) where thatcher was not that effective eg my aunts in scotland paid the poll tax without a murmur but in england after riotous protests, no poll tax.
    So from a mini-observation point of view thatcher was the best pommie prime minister in my memory and that includes winnie the turd. When asked about her greatest achievement she replied ‘new labour’. But that was years ago and corbyn is born again old labour. Is it time for that???

    ps this morning the twits on sunrise were railing about thousands of $s a minute in welfare! Do you remember in 2013 every day the autocue journos were screaming about labor’s debt?
    Think billy has been doing a good job in reminding the electorate of this government’s excesses, Lord???

  5. helvityni

    “This is why we endure the likes of News Ltd, Andrew Bolt and Alan Jones.”

    For many folks they are heroes, I used to turn the TV off when I saw Bolt or Akerman on Insiders.

    I just posted about Debra Hanrahan,( artist and academic) she suffers from Dwarfism, and is bullied and name-called EVERY time she goes out…

  6. Jack Straw

    If we don’t already have free speech in this country with 18C.I don’t know what is free speech?They want to remove 18C in case they get it wrong.Though then damage is already done isn’t it?

  7. townsvilleblog

    …and to add insult to injury I have just learned that Senator Eric Abetz is trying to make the GetUp organization, which I support financially to admit that they are associated with the Labor Party and The Greens which is not and has never been true. They are trying desperately to stop free speech.

  8. wam

    Helvityni, I am on a houseboat with relatives and friends. They are rabbottian and ‘no’ voters so politics is taboo and ch9 news rules.
    My darling walked into dareton and bought the age.
    They are avid readers of the adelaide advertiser and had never read a fairfax paper.
    Their comment was ‘there are no stories in it.’
    What they read in murdoch, hear on tlob and the shock jocks or see in the news, they believe and once you believe an opinion that is the truth.
    My truth is certainly not their truth but their truth is 3:1. QED The LNP is in front and unless a miracle is on the horizon will win a third term.

  9. etnorb

    Do we actually have “free speech” in Australia? I was told many years ago by someone “important” that our Constitution does not have a clause in it about allowing or having “free speech”. Is this wrong or what? Great article, as usual, John!

  10. Terry2

    Cheeky Possum award goes to Malcolm Turnbull who has said of the NBN :

    The Prime Minister says creating a government company to roll out the National Broadband Network was “a big mistake” and he was passed a “very, very bad hand of cards” by Labor.

    No Malcolm, this is the NBN that Abbott handed to you with the instructions to :

    14 September 2010 :

    Tony Abbott has ordered Malcolm Turnbull to “demolish” the ALP Government’s National Broadband Network (NBN) as he today brought him back to the Coalition frontbench to head up its communications portfolio.

    Can’t change history now Malcolm !

  11. jimhaz

    Speaking of “Licensed Abuse” I note the Traitor Murdoch’s Herald Sun and then all the other copy cats such a Channel 7 are merrily rabbiting on ignorantly about welfare costs. This is a dead set FAKE NEWS play on behalf of the Morrison-Abbott government. I note that Sunrise had squawkbox P Hanson on to talk about it.

    I mean just have a look at the unemployment percentage including projections here

    https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook45p/WelfareCost

  12. halfbreeder

    etnorb AND wam. The USA Constitution does not apply in Australia so why are you rattling on about the various amendments? This is not the USA.
    Free speech only exists in Australia at common law. Common law is law made by judges in courts in the absence of gov made legislation.That is, so long as the gov does not make legislation limiting fee speech such as defamation laws, copyright laws and offensive language laws etc we have free speech at common law. But the common law system means gov can make legislation that over-rides your common law rights including the free speech rights so common law rights are alienable and can be cancelled as they frequently are eg the laws of negligence and workplace safety. In common law systems such as ours government made legislation can cancel out a common law right and that is justified in Australia by the fact that judges are not elected but politicians who make legislation are.
    The Australian Constitution states that the Government of Australia is to be ‘chosen by the people’. In the 1970s the High Court of Chief Justice Mason decided that this clause implied that the people of Australian were free to communicate with each other and in the media etc on matters involving politics and government in order for them to chose their government. That is called the implied guarantee of immunity of communications on government and political matters. It is also referred ti as the Lange immunity after the case in which the High Court found the existence of the Lange principle. The Lange immunity or principle is only an immunity against prosecution in relation to speech on gov and political matters. The courts take a very narrow view on what constitutes gov and political matters and have even exempted themselves from being subject to the principle to stop people commenting on heir judgments and even though they are considered to be the Judicial arm of government in both the Constitution and case law made under the Constitution.
    So you see free speech laws are very weak in Australia generally as are all civil rights in the absence of a Bill of rRghts. Civil rights are not enshrined in any primary or poaramount document such as a Bill of Rights and are open to limitation, cancellation and modification by Governments and by Courts. Australia is the only developed country in the world without a Charter or Bill of Rights protecting even the most minimal civil rights of its ‘citizens’. The rights of the people are at the behest of politicians and the judicial cronies they appoint. Search for ‘Lange Case’ and ‘Coleman Case’

  13. Oscar

    John :“An enlightened society is one in which the suggestion that we need to legislate ones right to hate another person is considered intellectually barren” .

    I don’t think you can legislate against people hating someone or some thing John.
    Though it’s another thing to manipulate using subterfuge

    and general skulduggery to provoke and bring someone down by incorporating and getting others to do your dirty work for you.

    Legislation against Cruelty maybe

  14. OPPOSE THE MAJOUR PARTIES

    Oscar. ‘Legislation against Cruelty maybe’. How can you do that? We already have that – the various anti-assault and anti-provocation laws etc? Do you want laws against ‘taunting’ people? We already have racial vilification laws that prevent people inciting violence against other people on the basis of the others race. Education may be a better way to go rather than making more and more laws.

  15. OPPOSE THE MAJOUR PARTIES

    townsvilleblog
    ‘…and to add insult to injury I have just learned that Senator Eric Abetz is trying to make the GetUp organization, which I support financially to admit that they are associated with the Labor Party and The Greens which is not and has never been true. They are trying desperately to stop free speech’. They don’t have a hope in hell of stopping GetUp. The Constitution will protect GetUp 100%. Abetz is merely politicing and trying to smear Labor and the Greens ahead of the New England by election because the Barnacal is is trouble there according to the polls.

  16. Oscar

    Oppose I was just thinking out loud. My time was up clock that is. I was just replying to John’s last quote.I think 18 C works.We are educating these days hopefully.Though some are beyond education.

  17. Frank Smith

    I was hoping a GetUp campaign in Dickson may rid us of the evil Dutton. There is also a rumour going about that Benito Dutton may be trying to jump ship into a more secure LIberal seat so the Libs are doing everything they can to silence GetUp. What would be the use of a Homeland Security super department if it was not headed up by Benito and his henchman Pezulo (or whatever his name is)?

  18. John Lord

    Oppose the major parties.

    laws should only prohibit conduct that harms people physically or economically. if someone is merely ‘offended’ by a statement or conduct then the issue may be their own emotional immaturity.

    2500 people commit suicide every year some of whom have been abused mentally with language. Some might even lack emotional maturity.
    That’s a good reason not to abuse people for the sake of free speech.

    Are you really saying that anyone, like myself for example, who is offended by needless gutless language is emotional immature.

  19. OPPOSE THE MAJOUR PARTIES

    Abetz and his nazi cronies have got no hope of getting anything against GetUP! The Constitution protects GetUp! as determined in Unions v NSW and neither Abetz nor AEC nor Fed Police nor anyone else would have any evidence of GetUp! receiving contributions from political parties. How could they….spying? If they have evidence then it would have been illegally obtained or forged as GetUp! insists it has never received a contribution from a political party. If ‘evidence’ has been illegally obtained then it is inadmissible. No evidence means no case. GetUp! could then sue Abetz, The Commonwealth, the Fed Cops and AEC for malicious prosecution as they have no case against them to bring any criminal proceedings. Abetz is merely scaremongering and seeking to slur the Greens and ALP in the lead up to the New England by-election. Abetz us just another fascist LNP tosser

  20. stephentardrew

    One must ask is there freedom without facts and if truth demands facts then so does freedom. In a causal universe there is no freedom so the whole idea of free speech is an oxymoron and therefore paradoxical and that is why it is such a hot potato. We conflate subjective abstract ruminations with the objective facts of an actually scientifically verifiable and falsifiable universe. In this respect the discussion about free will is really quite contradictory given that we are not, in point of fact, free.

    Contradiction and paradox need not confuse they simply map out the territory and demonstrate where we rely upon opinion rather than facts introducing ethics and morality as guidelines to messy irrational, illogical and paradoxical minds. It seems scientific facts are much more useful than subjective opinions built upon personal wishes, hopes and desires. So demonstrable facts are much preferable to a free speech unhinged free-for-all.

    In the long run arguments for free speech are neither rational, logical nor empirically supportable. We have nominal choice within the constraints of fundamental laws, constants and probability. Free speech therefore is irreconcilably paradoxical and can only be resolved through a system of reasoned moral guidelines that constrain irrational nonsense which actually does untold damage to self and others. Least harm and do unto others, to my mind, is much more important than free speech. Without a foundational architecture of facts and proofs we are lost to dangerous ideologues.

    Free speech is no more than personal opinion run riot.

  21. OPPOSE THE MAJOUR PARTIES

    “Are you really saying that anyone, like myself for example, who is offended by needless gutless language is emotional immature”. I am saying that you are proposing the first stage in the establishment of tyranical dictatorship where manners derived from class rascism are imposed and enforced by Gov. If I want to say someone’s a dickhead I will say it. According to your proposal someone like Paul Keating would have a long criminal record. Needless gutless language such as? Do you really want to censor every single word people can say. How would comedy and humour stack up in your proposal…not very well. Dictatorship of the petite bourgsoise? How is someone to judge how their words are to impact on someone before they have already said it. ABFCKINGSURD! Just like your theory of politics as the common good…nothing but impractical waffling nonsense

  22. OPPOSE THE MAJOUR PARTIES

    ‘laws should only prohibit conduct that harms people physically or economically’ This the harm principle in essence. I was summarising it for readers. “offence may cause discomfort, but does not necessarily cause harm” https://en.wikipedia.org/wiki/Harm_principle

  23. OPPOSE THE MAJOUR PARTIES

    stephentardrew “In a causal universe there is no freedom so the whole idea of free speech is an oxymoron and therefore paradoxical”. “In the long run arguments for free speech are neither rational, logical nor empirically supportable. We have nominal choice within the constraints of fundamental laws, constants and probability.” Your applying the wrong definition of ‘freedom’. Political freedom is not the same as freedom in physics. It means freedom from interference or compulsion from the state and freedom to exercise ones will with out threat or force from state or powerful organisations. It is a freedom of the ‘will’. .Hence the freedom in the USA constitution is freedom to exercise or express ones views without interference or punishment from the state or from others. It arises from the domination of people in Europe by certain religions. Hence, although your statement is valid in terms of physics, it is not valid in relation to political and social realities with multiple actors who have varying often conflicting interests

  24. OPPOSE THE MAJOUR PARTIES

    Really if your proposal had ever been implemented most of Shakespeare’s works would never have been written or performed as it would be considered too ‘rude’

  25. OPPOSE THE MAJOUR PARTIES

    ‘Are you really saying that anyone, like myself for example, who is offended by needless gutless language is emotional immature’. The law cannot and should not be used to protect the idiosyncratic unpredictable sensitivities of every individual. The court house’s would be full of trivial matters if it did. What you find ‘offensive’ others may not, so why should your mere opinion of what is ‘offensive’ be privileged above anothers? I find it offensive that people advocate for limitations on my free speech. I propose that we stop people like you advocating for those limitations and make it an offence for them to do so. How’s that for an example? What is ‘offensive’ is a cultural and class construct and highly subjective. See the Danny Lim case and the changing nature of ‘offensive’. Guess Abbot could sue Danny for calling him a ‘con’t’ if your proposal was brought about

  26. jimhaz

    Yep, and I’ve always agreed that the word “offend” in 18C is too broad – but have not seen any need to change the act yet as the legislation doesn’t seem to have been abused.

  27. John Lord

    Oppose the major parties.

    Never have I suggested that we cannot be critical. I do it every day. That’s free speech.

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