Recently, Dear Reader, we have been pondering the matter of free speech.
Specifically, should it be absolute? Anyone able to say anything they like, unrestrained by the law.
We are referring, of course, to the Western world. It is clear that in authoritarian regimes the world over nothing like “free speech” exists, or ever has. But as we argue that liberal democracy is the best form of government to adopt, no matter who or where you are, it is surely fair to ask – sensible, indeed – to ask whether all the shibboleths of free speech are, in fact, practically defensible.
One of the key schism lines in world opinion is around the concept of “Criminal Defamation”, where the expression of an opinion is taken to damage a Government, and therefore put the civil peace at risk. What are (or should be) the rights of the state in seeking to restrain comment that can be considered injurious to the whole.
(This is not the same as Civil Defamation, where an individual has a a right to sue another individual (or corporation) for saying or printing something about them that they consider to be both untrue and harmful of their reputation, causing loss. No one seriously argues that Civil Defamation should be abolished – although the bar is set so high in the United States, for example, that defamation laws are essentially unenforceable, with predictable consequences.)
With Criminal Defamation, ironically, Great Britain, the country which bequeathed the infamous legacy of criminal defamation to states like India, where it is currently being heatedly debated, abolished the law in 2009.
Such laws are believed to date back to the early 17th century, when the invention of the printing press enabled political writings to be circulated far and wide easily and inexpensively through pamphlets, thus broadening the scope of public debate. The Court of the Star Chamber (the English court of law from the late fifteenth to mid-seventeenth century), fearing that criticisms against the royal authority, regardless of their truthfulness, may disturb public peace, began charging the critics with the criminal offence of “seditious libel”.
Evidently, a kind of faux civil peace, resulting from the English citizenry’s ignorance of their State’s corruption, was preferred over the knowledge of truth because any exposure could have potentially led to the downfall of the government. This perhaps explains the origin of the well-known adage, “The greater the truth, the greater the libel.”
Not surprisingly, famous England-American political theorist Thomas Paine, who helped inspire the American Revolution, was also charged with seditious libel in England because of his insistence on the right of the citizens to overthrow the government in the second part of his work Rights of Man. Even though Paine would have been happy with the fact that seditious libel was finally abolished in England, such laws continue to thrive to this day in many countries, and even in some democracies.
Indian law, for example, provides for imprisonment to anyone “who brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India”. This law was enacted by the British to keep the Indian freedom movement in check. Not surprisingly, both Bal Gangadhar Tilak and MK Gandhi were charged with sedition, arrested, and jailed for six years and two years respectively. Like the pigs taking over the farm in the novel 1984, the incoming Indian authorities duly left the laws on the books.
But isn’t it reasonable to disallow unfettered free speech is the result is the overthrow of a peaceful, beneficial state? The answer, of course, is that the question is a fallacy. In a democracy, the government’s behaviour should withstand any such scrutiny in the “court of public opinion”, and if it does not, well, essentially the Government does not deserve to survive. Even if the change of Government may be painful. Truth, here, is elevated above social discord, and few would argue, for example, that a corrupt or inept Government should not be subject to completely free criticism.
The problem is that the view of what constitutes a “peaceful, beneficial state” can vary widely. Just as someone may consider a Government corrupt or inept, but another may not, even when presented with the same evidence. This is before we even get into utilitarian considerations such as “the Government may be corrupt, but it’s helping a lot of people and things are going pretty well, so let’s all pretend it isn’t corrupt and leave things be”. That’s the pertaining situation throughout much of Asia currently, for example.
Currently Governments around the world are reserving the right to restrict free speech where that speech is designed to overthrow their rule by violent means. But from a libertarian point of view, this can be problematical. Many would argue it should be illegal to say “Government A is evil, so go and get a gun and shoot someone, in pursuit of overthrowing the Government”.
But should it be equally illegal to say “Government A is evil, in my view it is morally justified for someone to get a gun and shoot someone, in pursuit of overthrowing the Government”?
The difference is the width of a butterfly’s wing, but it could be argued that the latter is legitimate comment – a bona fide intellectual opinion – whilst the other is incitement to murder. Yet the latter will today get you just as locked up just as quickly in many Western democracies as would the more direct statement. The argument employed here is that the fractionally milder comment might have exactly the same effect of encouraging violent action, and therefore seeking to discern a difference is mere semantics, especially if the Government’s primary goal is to preserve its status and prevent violence.
Where the line is drawn in such matters is an on-going debate.
How, for example, does one parse the case of Bradley Manning (now Chelsea Manning), the American soldier of Wikileaks fame, who dumped vast amounts of classified information onto the world stage in pursuit of his belief that the public had a right to know what was being done – often illegally – in their name.
Manning languished in a dire mental condition in an American military prison – arguably the subject of ongoing mental torture from the authorities – for telling the world … what? That American helicopter gunships were cheerfully slaughtering Reuters journalists and innocent civilians on the ground through hopelessly loose rules of engagement? Or that world leaders say one thing to each other’s faces, and another to their advisors, and yet another to the public? What part of what Manning revealed – do people think they were either too stupid or too irresponsible to be told – which resulted in no harm to anyone, you will recall, as confirmed by the CIA – whether they were told by Wikileaks or by the newspapers round the world who gleefully re-reported the treasure trove of documents.
The incident was hugely embarrassing for many Governments, to be sure, but was it truly harmful? And why was Manning not protected by concepts of free speech? By all means argue that he contravened the rules of his military service (which is what he is technically being punished for) but should he have, if we believe what we say about free speech being sacrosanct, actually have been praised? Feted, even?
Why was he banged up in solitary when the journalists who re-reported him are free to pursue their careers, and the media barons free to bank their profits?
What led us to this pondering?
Yesterday, on radio in Melbourne, a “One Nation” Senator, recently elected in Queensland through the vagaries and lunacies of Australia’s Senate voting system, was given free range to spout his ludicrous theories that the United Nations were trying to impose “One World Government” on the planet through fear mongering on man-made climate change, change which wasn’t happening. That there was no empirical evidence that CO2 was causing global warming, or that if we scrapped all human fossil fuel emissions overnight it would make any difference to the state of the planet at all.
Mr Roberts has apparently also written numerous reports claiming climate change is an international conspiracy fostered by the United Nations and international banks to impose a socialist world order. According to the Sydney Morning Herald at least one report cites several anti-Semitic conspiracy theorists, including notorious Holocaust denier Eustace Mullins among its “primary references”.
According to the SMH Mr Roberts, who used to work in the arch-polluting coal industry, also sent a bizarre affidavit to then Australian Prime Minister Julia Gillard in 2011 demanding to be exempt from the carbon tax and using language consistent with the “sovereign citizen” movement.
Anti-government, self-identified “sovereign citizens” claim to exist outside the country’s legal and taxation systems and frequently believe the government uses grammar to enslave its citizens.
NSW Police say such people “should be considered a potential terrorist threat”.
In an affidavit he sent to Ms Gillard in 2011, Mr Roberts identified himself as “Malcolm-Ieuan: Roberts., the living soul”, representing a corporate entity he termed MALCOLM IEUAN ROBERTS.
In the document, Mr Roberts demanded to be exempted from the carbon tax and compensated to the tune of $280,000 if Ms Gillard did not provide “full and accurate disclosure” in relation to 28 points explaining why he should not be liable for the tax.
Mr Roberts addressed the affidavit to “The Woman, Julia-Eileen: Gillard., acting as The Honourable JULIA EILEEN GILLARD” and presented her with a detailed contract he expected her to sign.
That stylisation of names is said to be commonly used by “sovereign citizens” who believe the use of hyphens and colons is a way to evade governments’ use of grammar to enslave their citizens. Roberts has recently confirmed that he wrote the affidavit, but has stated that he is not a ‘sovereign citizen’.
The new Senator, who received 77 below-the-line first preference votes, will take his Senate seat on August 30 and will receive a taxpayer-funded base salary of $199,040, plus staff and entitlements.
The price of free speech is often very high indeed.
But the biggest price we pay is not monetary. It is seeing our public institutions – our broadcasters, and Parliaments – invaded by rogues, charlatans, and the frankly deluded, spouting theories that seek to mislead and derail intelligent debate under the guise of promoting “truth”.