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Boundaries on Freedom of Speech?

In today’s society the topic of free speech and censorship has been discussed, and finding the appropriate boundaries between enforced censorship and complete freedom of speech has been a large topic. When looking at it as individuals I honestly think that as singular forms there would be the percentage of people that could handle giving and receiving freedom of speech. As a nation and global community though the full use of freedom of speech at this point of time cannot be attained because of social boundaries that have been embedded in the minds of communities. In this essay I will be looking more closely at John Stuart Mill’s ‘harm principle’ in regards to Australia and how even though I agree with the whole use of freedom of speech I believe that as a nation we already have the appropriate boundaries for this country, and that the Bill of Rights which could bring in full use of freedom of speech should not be embraced.

What some Australian’s might not realise is that the Australian Constitution doesn’t actually outline anything that relates to freedom of speech; which can mean that the Commonwealth Parliament can, in theory, censor and restrict speech through censorship legislation or other laws, as long as they are within constitutional power (aph.gov.au) There are no list of personal rights or freedoms which may be enforced in the courts, there are however some provisions relating to personal rights such as the right to trial by jury, the right to freedom of religion, and ‘...since 1992 decisions of the High Court have indicated that there are implied rights to free speech and communication on matters concerning politics and government...[t]his is known as the 'implied freedom of political communication'...’ (aph.gov.au) . Does Australia then have the appropriate amount of boundaries for freedom of speech in the fact that unlike other countries such as the United States of America, New Zealand, Ireland, the United Kingdom, and South Africa, Australia doesn’t have a Bill of Rights (aph.gov.au) Firstly we have to look at what the use of freedom of speech would entail.

The debate of the limitations of freedom of speech has been discussed by philosophers through out history, Evelyn Beatrice-Hall’s philosophical thought of freedom of speech; “I disapprove of what you say, but I shall defend to the death your right to say it,” (1906), is the idea which I personally think stands along side with John Stuart Mill’s thoughts "that no one should be forcibly prevented from acting in any way he chooses provided his acts are not invasive of the free acts of others," (Mill, On Liberty. 1859). This concept has become known as the Harm Principle - which stipulates that any statement, regardless of how extreme, immoral or offensive it is, may be expressed, provided it does not cause harm to others.

As a child, I remember coming home crying because a boy had teased me about me hair, to make me feel better my mother told me a saying: Sticks and stones may break my bones but words will never hurt me. Life was always simpler as a child and trying to come to terms with mean things being said to it could be solved by saying those words to your perpetrator or to yourself to lift your spirits; but it seems that as you get older, that saying doesn’t seem to cut it in the adult society and deciding what constitutes as ‘harming others’ means more than just sticks and stones. Does ‘harming others’ just constitute as physical? Or does it include psychological and economical harm? Mill’s looks at two beliefs that coincide with one another when looking at freedom of speech, and that’s the Liberty Principle and the Social Authority Principle.  The Liberty Principle isn’t about a full scope of what liberty is, but it looks at how as a singular person you have the right of thought, expression and action, as long as it’s not harmful to other people, where people can’t oppress you to control the way in which you must think or act. Social Liberty looks at that an action maybe interfered by social or legal interactions so that it prevents the harm being done to others (trinitinture.com). This brings up what this ‘harm’ term could mean, and what the right and wrong of it is:

‘We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow-creatures; if not by opinion, by the reproaches of his own conscience... How we come by these ideas of deserving and not deserving punishment, will appear, perhaps, in the sequel; but I think there is no doubt that this distinction lies at the bottom of the notions of right and wrong.’ (trinitinture.com)

In different societies we count what we see as right and as wrong. It is then that you look at ‘harm’ as being something wrong being done by someone to another, and if it is being brought from a hateful place, or an intentional attempt to do something against the law. It should then be the right of the government or the society they are apart of to intervene and stop it. In theory it can then be looked at that harm constitutes as something ‘wrong’ that has been done in the eyes of legal and social laws of the community. This though can be very vague where the lines between the notions of the liberty and social principle can differ depending on the point of view.

In 2005, a Danish newspaper Jyllands-Posten printed twelve cartoons depicting what the editors saw as Muhammad, a sacred figure in the Muslim faith; the cartoons were then accompanied in an editorial criticising self-censorship after Danish writer Kare Bluitgen complained that he was unable to find an illustrator for his children's book about the Prophet. (news.bbc.co.uk) More of the cartoons were reprinted in newspapers in more than fifty other countries, further deepening the controversy. This led to Islamic protests across the Muslim world, with death threats to the artists and some protests which escalated into violence with the Danish embassy in Pakistan, buildings like the Danish Embassies in Syria, Lebanon and Iran set on fire, storming European buildings, and burning the Danish, Dutch, Norwegian, French and German flags in Gaza City (spiegel.de) On February 7th in 2006 in a BBC report Jyllands-Posten's culture editor, Flemming Rose, ‘...insisted that there is a long Danish tradition of biting satire with no taboos, and that Muhammad and Islam are being treated no differently to other religions or religious figures...’ The paper was soon to apoplogise that it offended some people, even if it was not their intention. (news.bbc.co.uk) Though not all Muslims were angered by the cartoons it brought the idea of freedom of speech to light.

This is looks at the broadness of Mill’s ‘harm principle’. The cartoons were created in a harmless manner to bring out discussion about self-censorship, but through that some of the cartoons were found offensive by some Muslim communities where they used their ‘social principles’ to stop the cartoons. By looking Mill’s theory the protestors lost their freedom to speak their opinion against the animations when violence and harm of others, along with the threat to harm the editors came into play. The editors were not being invasive to the readers as the reader has a choice to turn the page, or not read the paper at all, and if finding the piece offensive the reader then has the freedom of speech to write what they thought to the editors, publish their thoughts, bring up discussions, or to peacefully protest. To go against that by using force through harm you lose your right as you are no longer thinking because ‘...[t]he infliction of harm upon another person is what makes an action wrong...’ (Jorge Menezes Oliveira, Harm and Offence in Mill’s Conception of Liberty).

Other controversies that can be seen as a little more closer to home for Australia is the case of Irving v Lipstadt (2000) where David Irving, a Holocaust denier, sued American author Deborah Lipstadt over comments she made about him in her book Denying the Holocaust (Lipstadt, 2005). Though the issue looked at that Irving’s writings had unreliable, bias sources, along with creating his own evidence and poor citations; something that should have been more important (Irving v Lipstadt, 2002.p.120), but it ultimately became about the fact he was a Holocaust denier and whether his work should be censored. Looking at Mill’s idea of free speech Irving’s work should not be censored as he is giving his opinion, and thoughts, where people have a choice to read or not to read his work. It could be looked at that it is harmful as it instills anti-semitism, and that to deny a genocide that is so attached to western history. I don’t personally see it this way because the amount of Holocaust deniers compared to the amount of historians, social attitudes, films, and countries that recognise that the Holocaust happened, would be relatively small. The majority of society accept and believe that the Holocaust during World War II did happen, this should out way the deniers, so for it to create a mass harm to the Jewish community shouldn’t be that large, and again, people have the choice to read irving’s and other Holocaust deniers work. To censor it takes away a choice to people and a freedom to choose. Australia is one of the many countries to censor Irving’s work, though I personally believe his work shouldn’t be censored, because every Australian should be able to make an educated choice, at the same token I look at it as a singular person looking in at the issues, and not being apart of the community affected. Though Mill’s ‘harm principle’ looks at a sense of a complete use of freedom is has it’s many gray areas when you are apart of the community making the choice to whether the people or person should have the liberty or censored. This is where I think Australia has created appropriate boundaries, because even though legally with the lack of Bill of Rights Australia doesn’t have the full freedom of speech, Australia has the Five Fundamental Freedoms:

‘...[W]ithin the bounds of the law, to say or write what we think privately or publicly, about the government, or about any topic. We do not censor the media and may criticise the government without fear of arrest...the intention must be constructive, not to do harm...laws...protect a person's...integrity against false information...laws against saying or writing things to incite hatred against others because of their culture, ethnicity or background. Freedom of speech is not an excuse to harm others...free to join any organisation or group if it is legal...free to meet with other people in public or private places. We can meet in small or large groups for legal social or political purposes...to protest and to demonstrate is an accepted form of free expression...change [of] governments in a peaceful way by elections and not by violence...We are free to follow any religion we choose. We are also free not to have a religion...We can move freely to and from all states and territories. We can leave and return to Australia at any time.’  (immi.gov.au)

The Five Fundamental Freedoms give Australia appropriate boundaries to the citizens because though they don’t have the Bill of Rights they still have the freedom given to them that has to be followed by the government, and these fundamentals have been working to create a free form of a country. The Fundamentals do have similar to Mill’s ‘harm principle’ where as long as harm is not invoked to others you are given a freedom of choice.

The debate of freedom of speech and the appropriate boundaries is still a wide topic of discussion. Though Mill’s theory looks at liberal ideals of freedom of speech, with the amount of citizens in countries like Australia, having complete freedom can create grey areas of what harm is, and how much of a right a person has to say. Australia has created the appropriate amount of boundaries for the country at this time because it gives the people enough freedom of choice and speech, but gives enough control of the government to make sure that harm can be avoided as much as it can be. If the Bill of Rights was to be passed the boundaries of free speech no longer exist in the way it is now, and though it would give more choice to the people, the span of uncertainty of what harm is would be greater than what the country has now in keeping in the control of harm. Though I agree with the full use of free speech, when it comes to control I think that for Australia at this point of time the boundaries have been placed appropriately.