free speech

This page looks at free speech, online and offline.

It covers -

• introduction
• background
• online
• legislation and cases
• bibliographies
• libraries
• defamation
• sedition and contempt of court
• hate speech
• employees

Questions about professional privilege, in particular protection for journalists, are considered in the final pages of this guide.

    introduction

The expression and communication of information (particularly expression that is concerned with or impacts on politics and rights) - free speech - is central to liberal democracies. It is a key human right.

Free speech is not an absolute. In principle and practice it is circumscribed. The shape of those boundaries vary over time and by jurisdiction. In the US, for example the national Constitution guarantees speech free of government interference but is not "a civil-liberties security blanket" that provides comprehensive protection for speech in or about the workplace.

Free speech, whether online or off, thus does not provide an effective defence in most jurisdictions for -

• defaming an individual or a group (restricted under defamation, racial vilification and other law)
• extorting money or other benefits by threatening someone
• inciting riots and other crimes
• damage to property through graffiti
• breaching confidentiality provisions in contract law
• releasing intelligence or other information in breach of national security law information
• publishing restricted information in breach of personal privacy, secrecy, health, census, telecommunications, environment protection or other law
• publishing child pornography

The EFF's John Perry Barlow famously remarked that "in cyberspace the First Amendment is a local ordinance". Richard Barbrook's paper on The Regulation of Liberty: Free Speech, Free Trade and Free Gifts on the Net more perceptively questioned the copyleft notion of online free speech as freedom from compulsory commodification.

Of course in practice we are not citizens of cyberspace, so local ordinances matter. Questions of governance and jurisdiction are becoming increasingly important. In North America, the EU and Australia there is disagreement about whose law should apply in dealing with personal defamation and hate-speech. In the US the Supreme Court has actively used free speech in knocking down federal/state censorship legislation such as the CDA and COPA.

Questions of rights of assembly are explored in a supplementary note elsewhere on this site and in the final page of this guide.

    background

The essays in Freedom of Expression & Freedom of Information (Oxford: Oxford Uni Press 2000) edited by Jack Beatson & Yvonne Cripps offer a UK perspective, complementing Freedom of Speech & Incitement against Democracy (London: Kluwer 2000) by David Kretzmer & Francine Kershman, Press Law in Modern Democracies: A Comparative Study (New York: Longman 1985) edited by Pnina Lahav, The First Amendment & the Media in the Court of Public Opinion (New York: Cambridge Uni Press 2002) by David Yalof & Kenneth Dautrich and Privacy & Freedom of Expression (Oxford: Oxford Uni Press 2001) by Richard Clayton & Hugh Tomlinson.

For an introduction to philosophical questions see Free Speech: A Philosophical Inquiry (Cambridge: Cambridge Uni Press 1982) by Frederick Schauer, essays in Freedom of Communication (Aldershot: Dartmouth 1994) edited by Tom Campbell & Wojciech Sadurski, Joel Feinberg's The Moral Limits of the Criminal Law: Offense to Others (Oxford: Oxford Uni Press 1985) and the influential Freedom's Law: The Moral Reading of the American Constitution (Cambridge: Harvard Uni Press 1996) by Ronald Dworkin.

Much of aging enfant terrible Stanley Fish's There's No Such Thing as Free Speech, and It's a Good Thing, Too (New York: Oxford Uni Press 1994) struck us as the sort of postmodern mumbo jumbo that has given lit crit a bad name. Deconstructionists may enjoy Michel Foucault's lectures on Discourse & Truth: The Problematization of Parrhesia.

For us there is better value in Geoffrey Stone's Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York: Norton 2004) and Eternally Vigilant: Free Speech in the Modern Era (Chicago: Uni of Chicago Press 2001), co-edited with Lee Bollinger, Anthony Lewis' Freedom for the Thought That We Hate (New York: Basic Books 2008), Roger Shiner's Freedom of Commercial Expression (New York: Oxford Uni Press 2003) and Bruce Barry's Speechless: The Erosion of Free Expression in the American Workplace (London: Berrett-Koehler 2007). Courting the Abyss: Free Speech & the Liberal Tradition (Chicago: Uni of Chicago Press 2005) by John Peters, Robert Kahn's Holocaust Denial and the Law: A Comparative Study (London: Palgrave 2005) and Denying History: Who Says the Holocaust Never Happened and Why Do They Say It? (Berkeley: Uni of California Press 2000) by Michael Shermer & Alex Grobman will provoke thought. Biographies of troublemakers include Myra MacPherson's All Governments Lie! The Life and Times of Rebel Journalist I. F. Stone (New York: Scribner 2006)

Anxieties about flag burning and action against other national symbols in the US, Australia and elsewhere are explored in a more detailed note here.

Voltaire's 1733 Letter On the Liberty of the Press & of Theatres implored the censor

not to clip the wings of our writers so closely, nor to turn into barn-door fowls those who, allowed a start, might become eagles; reasonable liberty permits the mind to soar - slavery makes it creep.

Had there been a literary censorship in Rome, we should have had to-day neither Horace, Juvenal, nor the philosophical works of Cicero. If Milton, Dryden, Pope, and Locke had not been free, England would have had neither poets nor philosophers; there is something positively Turkish in proscribing printing; and hampering it is proscription. Be content with severely repressing diffamatory libels, for they are crimes

Cass Sunstein's Republic.com (Albany: State Uni of NY Press 2001) argues that in a democracy "free expression" must mean something more than mere absence of censorship. Instead, a "well-functioning system of free expression" that equips citizens for self-government must meet additional tests:

people should be exposed to materials that they would not have chosen in advance. Unplanned, unanticipated encounters are central to democracy itself ... I do not suggest that government should force people to see things that they wish to avoid. But I do contend that in a democracy deserving the name, people often come across views and topics that they have not specifically selected.

Second, many or most citizens should have a range of common experiences. Without shared experiences, a heterogeneous society will have a much more difficult time in addressing social problems ... Common experiences, emphatically including the common experiences made possible by the media, provide a form of social glue.

Contrary to the interpretation of some of his critics, he sees the net as such a glue.

    online

Patrick Gary's Scrambling for Protection: The New Media & the First Amendment (Pittsburgh: Uni of Pittsburgh Press 1994), David Sobel's 1996 paper The Constitutionality of the Communications Decency Act: Censorship on the Internet, Jeremy Lipschultz's Free Expression in the Age of the Internet: Social and Legal Boundaries (Boulder: Westview 2000) and Glen Robinson's article on The Electronic First Amendment ('Madison in the Age of Murdoch') offer a useful introduction to the US debate about free speech on the web. The First Amendment and Civil Liability (Bloomington: Indiana Uni Press 2001) by Robert O'Neil and 2004 Dumbing Down Democracy:Trends in Internet Regulation, Surveillance & Control in Asia (PDF) by James Gomez may also be useful.

The EFF and Harvard's Berkman Center have collaborated on a Chilling Effects site, examining "legal threats used to silence internet activity".

A Digital Technology Law Journal paper by Michael Blakeney & Fiona Macmillan, Regulating Speech On The Internet, considers law, technology and policy from an Australian perspective.

The above are more insightful than the bouncy Sex, Laws & Cyberspace: Freedom & Censorship on the Frontiers of the Online Revolution (New York: Owl/Holt 1997) by Jonathan Wallace & Mark Mangan, which has a companion site.

A perspective on recent libertarian thinking in the US is provided by David Rabban's Free Speech In Its Forgotten Years (Cambridge: Cambridge Uni Press 1997), considering the era before the ACLU, by Cass Sunstein's Democracy and the Problem of Free Speech (New York: Free Press 1993) and by Kent Greenawalt's Fighting Words: Individuals, Communities, and Liberties of Speech (Princeton: Princeton Uni Press 1995). Community ambivalence about media self-regulation, free speech, tabloid journalism and celebrity is considered in a separate profile on this site.

Jonathan Weinberg's 1997 paper Rating the Net, in one of the better legal analyses of filtering software and rating schemes, provides a succinct analysis of the implications for free speech. The American Civil Liberties Union's 1997 statement Fahrenheit 451.2: Is Cyberspace Burning? How Rating and Blocking Proposals May Torch Free Speech on the Internet is a useful point of reference for the US.

Marcia Pally's Sex & Sensibility: Reflections on Forbidden Mirrors & the Will to Censor (New York: Ecco 1994) and Nadine Strossen's Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York: Bantam 1995) offer a free speech response to Catharine MacKinnon's shrill Only Words (Cambridge: Harvard Uni Press 1993). Admirers of the latter may enjoy her Women's Lives, Men's Laws (Cambridge: Harvard Uni Press 2005) which derides individual rights as an ideological mask shielding existing and profoundly misogynistic "structures of domination".

In Australia the EFA site has material on local online free speech issues, less shrill than the Barlow-style pronouncements of some of its supporters.

    legislation and cases

Freedom of speech is not a fundamental right in the Australian constitution and attempts in 1942 and 1944 (the latter involving a referendum) to enshrine it were unsuccessful. The 1973 Human Rights Bill, reflecting the 1966 International Covenant on Civil & Political Rights, and recommendations of the 1985 Constitutional Commission for a Canadian-style Charter of Rights & Freedoms also went nowhere.

George Williams, in Human Rights Under The Australian Constitution (Melbourne: Oxford Uni Press 1999) argues that the "astonishingly low" support for the 1987 referendum signals the end of attempts to enshrine freedom of speech through a 'bill of rights' amendment of the constitution.

The Blakeney & Macmillan paper noted above deals with legislative protections as of 2000. Nicholas Aroney's Freedom of Speech in the Constitution (St Leonards: Centre for Independent Studies 1998) offers a more libertarian view. There is a succinct overview in the 2002 note on Free Speech & the Constitution by Roy Jordan of the Australian Parliament and in the longer 2007 Report of the Independent Audit into the State of Free Speech in Australia (PDF) from the major publishers and broadcasters. A historical perspective is provided by Jim Spigelman's 2000 Foundations of the freedom of the press in Australia address.

Key Australian High Court decisions are -

Nationwide News Pty Ltd v Wills (1992)
Australian Capital Television v Commonwealth (1992)
Theophanous v Herald & Weekly Times (1994)
Stephens v West Australian Newspapers (1994)
Cunliffe v Commonwealth (1994)
McGinty v Western Australia (1996)
Langer v Commonwealth (1996)
Muldowney v South Australia (1996)
Lange v Aust Broadcasting Commission (1997)
Levy v Victoria (1997)

In Europe Article 10 of the European Convention on Human Rights (ECHR), considered in more detail in our Human Rights profile, states that

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and mpartiality of the judiciary.

In the US the First Amendment to the national Constitution provides that "Congress shall make no law … abridging the freedom of speech, or of the press". The Supreme Court has interpreted that restriction as applying to Congress, all branches of the federal government and all branches of state and local government. However, it provides no protection to some types of speech and only limited protection to others.

For example the Court has decided that the First Amendment provides no protection to "obscenity", "child pornography" or speech that constitutes "advocacy of the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". ”
The Amendment provides less than full protection to commercial speech, defamation, speech that may be harmful to children, speech broadcast on radio and television, and public employees' speech.

Importantly, speech that enjoys the most extensive First Amendment protection may be subject to

regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication

and may be restricted on the basis of its content if the restriction passes "strict scrutiny" (if government shows that the restriction serves to "promote a compelling interest" and is "the least restrictive means to further the articulated interest").

    bibliographies

There's no definitive Australian bibliography, online or in print, of freedom of speech. The outstanding study is Michael Chesterman's Freedom of Speech in Australian Law: A Delicate Plant (Aldershot: Ashgate 2000).

Ralph McCoy's online Freedom of the Press: An Annotated Bibliography is an authoritative and comprehensive guide to several thousand books and articles on freedom of the press. Its focus is on the US.

    defamation

As we note in our Governance guide and Marketing guide, legal thinking about defamation online is still fluid. There have been landmark cases (eg in Western Australia) that demonstrate defamation is not restricted to traditional media.

Some theorists, such as Brian Martin, have argued that notions of content regulation have no place in cyberspace. We are unconvinced by what appears to be Martin's proposal that if you're defamed online the remedy is to use the net to alert people to the truth. Martin does, however, highlight concerns about power relations - online and off - and the chilling effect of individuals/organisations that are rich enough (or merely devoted) to suppress legitimate criticism. Most ISPs, individuals and organisations will hasten to comply if faced by legal boilerplate inviting endless hours before a jury.

There is a cogent analysis in Matt Collins' The Law of Defamation & the Internet (Oxford: Oxford Uni Press 2001) and in Russell Weaver's paper Defamation Law in Turmoil: The Challenges Presented by the Internet, which examine particular issues from a traditional legal perspective.

For a wider ranging study see Michael Gillooly's The Law of Defamation in Australia & New Zealand (Sydney: Federation Press 1998).

A detailed profile about online defamation principles, cases and academic literature is here.

    sedition and contempt of court

As we suggested in discussing information flows, the legal codes of most nations have featured restrictions on sedition, ie against advocacy of overthrowing those in power or merely disrespect for their persons and status.

In the West such restrictions have waxed and waned, reflecting anxieties about jacobinism, anarchism, communism and contemporary terrorism.

In Australia, for example, the last major incident in Australia appears to be action against communist party official Lance Sharkey for his 1949 statement that "If Soviet Forces in pursuit of aggressors entered Australia, Australian workers would welcome them".

The US 1918 Sedition Act made it a crime to "utter or publish any disloyal language intended to cause contempt for the American form of government, or the Constitution, or the flag, or the uniform of the Army or Navy". More recently the UK Prime Minister has announced that "condoning or glorifying terrorism" would become a crime, irrespective of whether that speech took place in the UK or elsewhere.

Sedition legislation has featured in regimes outside the West: recent perspectives from China and Malaysia are the RSF report on Chinese censorship of chat rooms, the 2003 Information Control and Self-Censorship in the PRC and the Spread of SARS report (PDF) by the US Congressional Executive Commission on China and 2003 Memorandum on the Malaysian Sedition Act 1948 (PDF) by Article 19.

A detailed discussion of sedition and the net is featured elsewhere on this site, with an examination of particular regimes and pointers to notable studies such as Roger Douglas' 2002 study Saving Australia from Sedition: Customs, the Attorney-General's Department and the Administration of Peacetime Political Censorship.

Some theorists have associated restrictions on sedition with those against contempt of court, reflecting both judicial bodies as an embodiment of the state and the importance of not prejudicing justice through for example inappropriate reporting of court proceedings.

In Australia, New Zealand and many other regimes it is permissible to freely criticise a court decision on its merits. It is however it is contempt of court, with potential criminal sanctions, to attribute bias or improper motives to judges or magistrates. Much concern about the interaction of contempt and free speech has centred on restrictions on publication of anything that might prejudice an accused person's right to a fair trial. Contempt provisions have for example been used in fining and imprisoning some of the more scabrous journalists in Australia and the UK.

In the UK the Serious Organised Crime & Police Act 2005 was used in 2005 to gag public speech within a kilometre of the Houses of Westminster, notably in prosecution of someone who recited lists of war dead from the Cenotaph in Whitehall. In Australia clause 9.01 of the ineptly Aviation Transport Security Regulations of 2005 prohibits both a threat to interfere with an aircraft, for example planting a bomb, and saying someone has done such a thing.

    libraries

Free Access To Information & Freedom of Expression (FAIFE) is an initiative from the library community, with an international focus.

Edgar Crook's 2000 Erotica in Australian Libraries: Are We Negligent Collection Managers? paper offers another perspective on access to content through public institutions.

Library censorship is further discussed later in this guide.

    hate speech

There is a more detailed discussion in our Politics guide of debate about free speech and restrictions on 'hate speech', particularly sites that incite violence. (Pointers to Australian and overseas anti-discrimination legislation that some claim have a 'chilling effect' on online free speech are here).

There is no Australian legislation specific to online hate speech; it has been addressed through Federal and State/Territory antidiscrimination law. There is a valuable introduction in Hate Speech & Freedom of Speech in Australia (Leichhardt: Federation Press 2007) edited by Katherine Gelber & Adrienne Stone.

For an international perspective see James Jacobs & Kimberly Potter's Hate Crimes: Criminal Law & Identity Politics (Oxford: Oxford Uni Press 1998) and the overview of the 1995 Hate Speech Symposium: Protecting Rights, Protecting Hate? Comparative American, Canadian, and Israeli Approaches.

For the US, where tensions have been most evident, see Samuel Walker's Hate Speech: The History of an American Controversy (Lincoln: Uni of Nebraska Press 1994), Franklyn Haiman's Speech Acts & the First Amendment (Carbondale: Southern Illinois Uni Press 1993) and Jonathan Rauch's Kindly Inquisitors: The New Attacks on Free Thought (Chicago: Uni of Chicago Press 1994).

Susan Herring's concise 1995 comment Freedom of Speech or Freedom of Harassment offers a view of the "self-regulating cyberdemocracy", complemented by Katharine Gelber's Speaking Back: The Free Speech versus Hate Speech Debate (Philadelphia: John Benjamins 2002). There is a broader historical account in Rochelle Gurstein's The Repeal of Reticence: A History of America's Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation & Modern Art (New York: Hill & Wang 1996).

    employees and other animals

Employees in the US and elsewhere do not have a comprehensive right to untrammelled communication in the course of their employment. Some employers have also restricted expression outside the workplace.

Organisations commonly restrict what their personnel (and customers) can see, for example by blocking access to adult content and gambling sites or to services such as Facebook and interdicting spam addressed to employees. They may also restrict communication within/from the organisation, whether to protect assets, minimise exposure to litigation regarding harassment or inhibit industrial activism among the binary proletariat.

Restrictions are explored in the exploration of workplace censorship later in this guide, confidentiality elsewhere on this site and in the discussion of blog-related and social network-related dismissals of employees.

In practice, some people enjoy fewer rights. A particular example is that of prisoners in Australian and overseas custodial institutions, who face substantial restrictions on what they can see/hear and what they can express.





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