 |
 |
Free Speech and its Postmodern Adversaries
Laurence W Maher
Barrister
Murdoch University Electronic Journal Of Law ISSN 1321 - 8247, Vol 8 No 2 (June 2001)
|
|
Laurence W Maher
Barrister
Murdoch University Electronic Journal Of Law ISSN 1321 - 8247, Vol 8 No 2 (June 2001)
Contents
* Introduction
* The Contemporary Free Speech Debate In Australia
* Faces Of Hate/Faces Of Repression
* Charge And Refutation
* Outlawing Offensive Speech
* A Postmodern Detour
* Postmodernism, Free Speech And The Need For A Renewed "Realist"
Skepticism
o The Eschewing Of Empirical Investigation
o The Propounding Of Grand "Theory"
o A Determined Preference For Abstract Concepts Over Concrete
Examples
o A Broad Rejection Of The Idea That There Is Useful Plain Language
* Repudiating The Fact/Opinion Distinction
o Vague And Subjective Criteria Of Liability
o Assimilating Speech And Conduct
o Psychic Group "Harm" And The Promotion Of Symbolic Legal
Prohibitions
o Penalising "Dangerous Tendency"
o Digressing From The Struggle Against Discrimination
o An Aversion To Trusting To The Truth
o Education And "Re-Education"
o Selectivity And Stereotyping
o Fear Of Division And Disharmomy
* Conclusion
* Notes
And though all the winds of doctrine were let loose to play
upon the earth, so Truth be in the field, we do injuriously
by licensing and prohibiting to misdoubt her strength. Let
her and Falsehood grapple; who ever knew Truth put to the
worse in a free and open encounter? {John Milton
Areopagitica (1644)}
If all mankind minus one, were of one opinion, and only one
person were of the contrary opinion, mankind would be no
more justified in silencing that one person that he, if he
had the power, would be justified in silencing mankind.
{(John Stuart Mill On Liberty (1859)}
If large numbers of people are interested in freedom of
speech, there will be freedom of speech, even if the law
forbids it; if public opinion is sluggish inconvenient
minorities will be persecuted, even if laws exist to protect
them. {George Orwell Freedom of the Park (1945)}
Introduction
1. This article is a response to the essay by David Fraser, "Memory,
Murder and Justice: Holocaust Denial and the 'scholarship' of Hate"
which is chapter 8 of Faces of Hate: Hate Crime in Australia (1997).
The Contemporary Free Speech Debate In Australia
2. The role of those three fundamental and inter-related personal
freedoms - freedom of thought and conscience, freedom of expression,
and freedom of association and assembly - continues to excite vigorous
public debate in Australia. This should bode well for Australia as a
robust, free and open society. Yet there is a new mood of censorship
abroad and the right to dissent - in essence, the right of the
individual to be different - is under sustained and, to some extent,
successful attack. Among recent events illustrating the wide-ranging
nature and intensity of the contemporary free speech debate and the
imposition of censorship are the following:
o the passage of the Racial Hatred Act 1995 (Cth); [1]
o the campaign in the 1996 federal election by the veteran
political dissident, Albert Langer, [2] to persuade electors to
vote in a way that was contrary to the preferential voting system
prescribed by the Commonwealth Electoral Act 1918 (Cth), the
steps taken by the Australian Electoral Commission to suppress
Langer's campaign, and the imprisonment of Langer for
disobedience to an order of the Supreme Court of Victoria
forbidding him from advocating conduct contrary to that Act; [3]
o Prime Minister Howard's claim, following the change of government
in March 1996, that the value of freedom of speech was being
reasserted in Australia after the lifting of what he claimed was
the "pall of censorship" surrounding the previous (Labor)
government; [4]
o the unsuccessful Trade Practices Act action brought by a
Professor of Geology against an ordained Christian minister in
respect of the archaeological investigation on a boat-shaped
formation near Mt Ararat in Turkey which the minister publicly
claimed could be the remnants of Noah's ark; [5]
o suggestions that there was a case for curbing the parliamentary
privilege of freedom of expression when allegations were made in
the New South Wales Parliament of misconduct concerning the
former New South Wales Supreme Court judge, David Yeldham.
Yeldham later committed suicide; [6]
o the controversy prompted by the first Parliamentary speech by Mrs
Pauline Hanson in September 1996, the violence which occurred at
some public meetings later addressed by her, and the influence of
her One Nation Party illustrated by its successes in the 1998
Queensland election; [7]
o Mrs Hanson's successful application for an injunction prohibiting
the broadcasting of a song subjecting her to satirical attack
during the 1998 federal election campaign; [8]
o the prosecution of the editors of the La Trobe University student
newspaper, Rabelais, for the publication and distribution of an
article entitled "The Art of Shoplifting";[9]
o the unsuccessful second Federal Court challenge by the British
historian, David Irving, to the continuing refusal of the
Australian Government to grant him an entry permit; [10]
o the denial of an entry permit to the Sinn Fein leader, Gerry
Adams in 1996, and the reversal of that decision in late 1998;
o the seizure by police in Darwin of photographs depicting the
alleged rape and torture of an East Timorese woman on the basis
that the photographs were obscene; [11]
o the controversy surrounding the visit to Australia in 1997 of the
American political activist, Lorenzo Ervin and the federal
government's attempt to deport him; [12]
o the unsuccessful calls in early 1998 for the denial of an entry
permit to the US religious leader and political activist, Louis
Farrakhan;
o the denial by the Australian Government of an entry permit to a
former member of MI6, the United Kingdom foreign security
intelligence gathering agency, who had been accused of breaching
and threatening to breach his obligation to keep confidential
information acquired by him as a member of MI6; [13]
o the failed attempt by the Catholic Archbishop of Melbourne in
1997 to breathe life into the common law offence of blasphemous
libel in order to obtain injunctive relief to prevent the
exhibition by the National Gallery of Victoria of the
photographic image,Piss Christ, by the American artist, Andres
Serrano; [14]
o the institution of criminal defamation prosecutions in New South
Wales and Victoria; [15] the High Court's recognition that
freedom of expression regarding political and governmental
matters enjoys some constitutional protection and the ensuing
adjustment of the common law defence of qualified privilege in
the law of defamation; [16]
o the introduction of a co-operative national scheme of
comprehensive administrative censorship embodied in the
Classification (Publications, Films and Computer Games) Act 1995
(Cth) and complementary State and Territory legislation; [17]
o proposals for the extension of existing censorship laws to take
account of new communications technologies including the Internet
and on-line services generally resulting in the passage of the
Broadcasting Services (On-Line Services) Amendment Act 1999
(Cth);
o calls for the removal of "offensive" books from public and school
libraries, [18] for the banning of the second film adaptation of
Vladimir Nabokov's novel, Lolita, and for the imposition of
sanctions in respect of Louis Nowra's play, Miss Bosnia; [19]
o disputes about Christmas nativity displays, public school
Christmas activities, and Easter crucifixion displays; [20]
o judicial recognition of changing community standards resulting in
a lessening the reach of the law of obscenity; [21]
o restrictions on the availability of informational material in day
care centres imposed by the National Childcare Accreditation
Council Guidelines; [22]
o the attempt by the Commonwealth Government in late 1999 to impose
speech restrictions on the US abortionist, Dr Warren Hern, as a
condition of his entry to Australia on a speaking tour. [23]
3. Debates and campaigns about freedom of expression and censorship have
been a central feature in the continuing evolution of Australian
democracy and individual freedom. [24] By the mid-1970s, a
liberalising highpoint had been reached after decades of debate about
literary and artistic censorship in Australia. The guiding principle
which had by then been embraced by an increasing segment of the
Australian community was that adults should be entitled to see, hear
and read what they wished subject only to such restrictions as were
necessary, first, to prevent persons being exposed to unsolicited
material offensive to them (especially unsolicited pornography) and,
secondly, to protect children from material likely to be harmful to
them. [25] No less importantly, restrictions on dissenting political
expression and protest had been gradually reduced particularly in the
wake of the widespread vigorous public opposition to military
conscription which was reintroduced in the context of Australian
participation in the Vietnam War. [26]
4. Paradoxically, as Australia continued to evolve as an open and
tolerant society over the last 30 years, some of the liberating forces
behind that evolutionary process simultaneously stimulated a renewed
movement to impose legal restraints on individual freedom of thought,
expression, and association. Australia has now entered an uncertain
era of renewed enthusiasm for and imposition of State censorship. This
development has been, in large part, a backlash against perceived
liberal or libertarian excesses of the mid-1970s combined with the
emergence of new communications technologies and of entirely new
social forces and pro-censorship arguments. Varying greatly according
to both the specific form and subject matter of the challenged
category or content of expression and the ideological preferences of
the would-be censors, the contemporary free speech debate nevertheless
remains essentially a compound of competing claims about what is said
to be harmful to Australians and Australian society as a whole and
what, as a matter of balancing the relevant competing claims, that
society can safely tolerate.
5. The emergence of new substantive justifications for censorship has led
some proponents of renewed punitive legal restrictions on unacceptable
speech to repudiate many, if not all, of what might be called the
traditional liberal democratic or libertarian justifications for
minimal restrictions on individual freedom of thought, expression and
association. The new justifications frequently emphasise the
protection of minority group interests and new conceptions of civic
equality involving a sharp movement away from the centrality of
individual liberty and individual rights and towards a preference for
the recognition and protection of collective rights. The new
censorship has been given effect in legislative prohibitions intended
to deter and punish speech which, in substance, is said by the
censorship proponents to be unjustifiably "offensive", "scurrilous",
"insulting", "humiliating", "hateful", "degrading", "shocking",
"intimidating", "threatening", "objectionable", or which vilifies or
promotes contempt for or ridicule of persons or groups of persons on
the grounds of race, ethnicity, sex, sexual preference, and
disability. [27]
6. One prominent manifestation of the scope and complexity of the new
pro-censorship movements is the sharply contrasting nature of the
arguments offered in support of more vigorous censorship of
pornography - putting to one side (so far as that may be possible) the
vexed question of the definition of pornography. Concern for the
effective protection of children against depictions of pornography
(and violence) and their exploitation in the production of pornography
continues to command widespread community acceptance. However, so far
as adult access to adult pornography is concerned, the mid-1970s
libertarian high point is now under sustained attack on more than one
front. To the traditional claims that pornography tends to deprave and
corrupt those exposed to it (children and adults alike) and should be
suppressed as being contrary or offensive to Judaeo-Christian
standards of decency and morality, there has been added the
fundamentally different (and perhaps incompatible) secular feminist
claim that pornography reflects and promotes the subordinated social
position of women generally and is thus inimical to the achievement of
equality. [28] The proponents of these two contrasting pro-censorship
views are strikingly unlikely bedfellows in the continuing struggle
against smut and depravity. [29]
7. The "right" (admittedly, a broad category) of the political spectrum
has been the main traditional source and beneficiary of censorship. As
some of the examples given above clearly indicate, the "right" remains
an active and resolute source of support for censorship. It is
notable, however, that much of the recent impetus for the reimposition
of State censorship controls has come from the "left" (also a broad
category) which traditionally has been the main target of censorship.
Some sections of the "left" have exhibited a new found zeal in
equipping the organs of the State with power to make judgments about
the worth or truth of controversial ideas and speech and to deploy the
policing apparatus of the State to suppress and punish speech deemed
to be objectionable. The strong recent support for censorship from
sections of the left should be a salutary reminder that the
hard-fought battles for freedom of yesteryear were, in particular,
characterised by (and, indeed, often successful because of) the quite
deliberate and systematic use of what was usually regarded by the
traditional proponents of censorship as vilification, and offensive,
insulting, humiliating, degrading and hateful speech. It is,
simultaneously, a clear signal that against the common sense
proposition that sharp conflict of ideas and opinions is, by
definition, a natural and healthy feature of all open societies, it is
now often said that statements which allegedly have a mere tendency to
promote conflict or divisiveness or disharmony along, for example,
ethnic and racial lines, can no longer be tolerated.
8. Within some sections of the Australian academic and public
intellectual community, the traditional liberal democratic commitment
to the broad protection of freedom of thought, inquiry, expression,
and association as a central element of a free society based on the
rights of autonomous individuals is now characterised as being at odds
with, and destructive of, the collective rights and claims for
equality of certain officially recognised minorities. [30]
9. In much of the contemporary theoretical literature prevalent in the
study of the humanities (or what is now more commonly referred to in
academia as "cultural studies"), society is sweepingly depicted in
terms of abstract concepts such as "dominated" or "subordinated"
groups, "oppressed" or "victimised" minorities, "identities",
"hegemony", "patriarchy", and so on. This has produced a sharp clash
of values: a struggle often depicted as being one for (and between)
liberty and equality. Since the mid-1970s, it has been increasingly
argued by the pro-censorship left that a truly democratic society is
one which actively discourages and, if necessary, through the
apparatus of the State, punishes individual behaviour (including
speech and speech-related conduct) [31] which is said to be inimical
to the struggle to overcome so-called majoritarian or dominant group
oppression of selected minorities. [32]
10. The sentiments supporting the new equality-based pro-censorship
arguments are not without some force. Invidious discriminatory action
or conduct (referable to religious belief, ethnic origin, sex,
personal disability, and so on) in employment, accommodation, the
provision of public services, and otherwise in the provision of goods
and services in everyday life has been a feature of Australian society
(as in all other societies) and has properly prompted the enactment of
anti-discrimination legislation throughout the Commonwealth. However,
the new wide-ranging emphasis on redressing the harm done to minority
groups by discriminatory conduct has helped foster and entrench the
claim that the traditional attachment to individual rights is deeply
flawed in that individual free speech in and of itself may promote
inequality and injustice. [33] In this overall context, it is argued
that individual free speech has occasionally to be curbed where,
because of its context, it has the tendency to permit or encourage the
expression of dissenting ideas or opinions about the proper role or
entitlements of selected minority groups in society, it can do more
harm than good. For this purpose, the targeted "discriminatory"
behaviour may, it is argued, legitimately include mere speech and
speech-related conduct.
11. The new social, political and cultural theories which have underpinned
much of the "left's" recent attack on liberal democratic claims for
the primacy of the right of individual free speech can conveniently be
gathered under the descriptive term "postmodernism". The broad
postmodern church has many sects - poststructuralism, postcolonialism,
and so on. Probably the clearest feature of postmodernism is that the
prefix "post" is, to varying degrees, indicative of a strong negative
or disapproving reaction to "modernism". For this critical purpose,
"modernism" is taken to be a collection of ideas, attitudes and
movements anchored in what proponents of "modernism" applaud as the
liberating individualism, rationalism, and creativity of the
(European) Enlightenment. The "modernism" which is now so strenuously
attacked from some sections of the political and intellectual left is
basically optimistic. It rests on ideas of continuing progress in
universal human well-being. In particular, it is associated with the
rise of rationality in the ascertainment of objective truth, and a
corresponding decline in religious dogma, sectarian prejudice, and
superstition generally. It pursues an ever-expanding field of human
knowledge. More particularly, it is manifested in scientific
discovery, technological advance and the relief of suffering. It
promotes the expansion of personal liberty, the universal rights of
mankind and other manifestations of universal human "progress". For
its supporters, the Enlightenment is thus portrayed as a major step
forward in the history of mankind.
12. This representation of the universal progressive movement of secular
humanist society has never been immune to criticism. It has always
discomfited the religious world simply because it is essentially
secular and questioning. It is also said that its materialist excesses
led to the rise of unchecked capitalism, socialism, Marxism,
nationalism, imperialism, and related movements. It began to be
questioned in quite different ways by sections of the secular left
intelligentsia especially with the steady decline and disintegration
of European Marxism from the early-1960s. The ensuing fragmentation of
left-wing political movements and ideologies, the end of European
colonisation, the emergence and sustained evolution of a new feminist
movement, the rise of a new environmentalism, have, in part, both
reflected and stimulated the rise of postmodernism and its ideological
opposition to the supposedly oppressive "Western", materialist, and
male-oriented values which are said, in turn, to be, in part at least,
a product of the Age of Reason. The very influential rise of these new
intellectual movements in the past three decades has been closely
associated with the ideas of European (often French) theorists,
including Michel Foucault, Jacques Derrida, Jacques Lacan, Jean
François Lyotard, Jean Baudrillard, Julia Kristeva, Luce Irigary, and
their bands of disciples in academia (and sections of the mass media)
in Europe, the United States of America, Australia, and elsewhere.
[34]
13. At the dominant abstract or theoretical level, postmodernism's
rejection of so-called meta-narratives such as liberalism, socialism
and (perhaps especially, Marxism) and the supposed collapse of the
"old universal certainties" is traceable, in part, to the thoughts of
Friederich Nietzsche, and the linguistic theory of Ferdinand de
Saussure and supports miscellaneous attacks on so-called absolute or
foundational or universal truth. In its social setting, the new
analytical focus is frequently directed to the specific or particular
experience of "marginalised" groups and on "difference" between
groups. If any one word in its (often impenetrable) vocabulary is the
fulcrum of the postmodern "project", it is the word "culture". The
focus of much analytical activity is the pre-eminent desirability of a
social condition gathered under the rubric of "cultural diversity" and
the need to struggle against the cultural imperialism of Western
conceptions of rationality and freedom. This is not, however, merely a
(post)modern reworking of the liberal democratic idea of tolerance
which necessarily embodies the proposition that the individual is free
(rightly or wrongly) to denounce one set of ideas over another or to
assert cultural and moral superiority. Since the attainment of
cultural diversity is a paramount objective, any perceived
disparagement of so-called minority culture[s] is especially
deprecated in the postmodern dispensation. In this context, truth and
reality are viewed as no more than functions of perception according
to the social or political or, more precisely, the cultural vantage
point or bias of the various groups which make up any given society or
"community". Rationality, objectivity and truth are thus seen as
"social constructions", relative to a particular group perspective
rather than as value-neutral transcendent realities. The Western
interpretative perspective arising out of the Enlightenment is but
one, albeit the allegedly "dominant" (i.e. oppressive), cultural
perspective. The new postmodern modes of analysis have necessarily
involved, to varying degrees, an attack on the notion of a unique
individual self and of a private identity that transcends group
identity. For many postmodernists, the individual "self" is also
labelled as a social construction. Individual freedom of expression is
therefore chimerical. Rather, the expression of ideas and opinions
primarily reflects some underlying group identity and is no more than
an exercise in power between groups with unequal power.
"Deconstruction" is therefore necessary to reveal the underlying
struggle for power inherent in all claims for the truth. All this
theorising has been underpinned by a very strong linguistic stimulus
with the malleability or indeterminacy of language being the
constituent reality. The dominant analytical preoccupation is with
representation and text so that, in Derrida's famous aphorism - Il n'y
a pas de hors texte. [35]
14. At the forefront of the new collective identity-based calls for
renewed State censorship and punishment of disapproved of speech, is
the claim that something generically (but very unhelpfully) labelled
"hate speech" should enjoy no legal protection and should be stamped
out at least insofar as it is targetted at selected (i.e the
"disempowered", "oppressed" or "subordinated") minority groups. [36]
The new postmodern social and political theories and associated
explanations of social and cultural organization are, to some extent,