film & video
This page looks at free speech, online and offline.
It covers -
about professional privilege, in particular protection
for journalists, are considered in the final pages of
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 -
an individual or a group (restricted under defamation,
racial vilification and other law)
money or other benefits by threatening someone
inciting riots and other crimes
to property through graffiti
breaching confidentiality provisions in contract law
intelligence or other information in breach of national
security law information
restricted information in breach of personal privacy,
secrecy, health, census,
telecommunications, environment protection or other
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
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.
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
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
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
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.
to the interpretation of some of his critics, he sees
the net as such a glue.
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
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
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 -
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)
Two Sydney activists have won a Federal Court challenge
to special World Youth Day laws that carry $5500 fines
for annoying pilgrims.
The NoToPope Coalition scored the victory when the Federal
Court ruled that legislation that would have prevented
its members from handing out leaflets and other items
was invalid in law.
The court, comprising Justices French, Branson and Stone,
said that part of the World Youth Day Act, passed by the
NSW Parliament to keep order during the World Youth Day
events, "should not be interpreted as conferring
powers that are repugnant to fundamental rights and freedoms
at common law in the absence of clear authority from Parliament".
The judges noted that Rachel Evans, a university student
who had challenged the legislation, proposed to hand out
condoms and flyers containing information in
relation to certain "political matters" on the
Pilgrim Walking Route at Moore Park on Saturday.
On the same day, Amber Pike, who had joined Ms Evans in
the action, proposed to hand out condoms, candles, stickers
contianing political slogans and polititical leaflets
at Central Station and Moore Park.
The judges said that, in their view, none of the items
the activists proposed to distribute were proscribed articles
within the meaning of the act. Nor were "symbolic
coat-hangers" they planned to hand out to draw attention
to the backyard abortion problem.
Annoyance clause invalid
The judges said that the interpretation of clause 7.1
of the act, which allowed regulation of conduct deemed
to be a cause of "annoyance", was invalid
because it "affects freedom of speech in a way that,
in our opinion, is not supported by the statutory powers".
There was "no intelligible boundary" on what
The regulation relating to annoyance "could be expected
to have a chilling effect upon the exercise of their
freedom of speech because of the very uncertainty about
the degree of its infringement upon that freedom",
Another part of the same clause, which dealt with causing
"inconvenience", had a more "objective
content" and could draw on individual judgment.
It gave protection against disruptive behaviour, which
caused inconvenience to participants, and behaviour that
might give rise to a risk of public safety.
They added: "Over and above these provisions the
general criminal laws of the state relating to disorderly
and offensive conduct and the like are able to be invoked
should that be necessary."
In Europe Article 10 of the European Convention on Human
Rights (ECHR), considered in more
detail in our Human Rights profile,
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.
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
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'
Importantly, speech that enjoys the most extensive First
Amendment protection may be subject to
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
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").
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.
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
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.
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
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
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
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.
Free Access To Information & Freedom of Expression
is an initiative from the library community, with an international
Edgar Crook's 2000 Erotica in Australian Libraries:
Are We Negligent Collection Managers? paper
offers another perspective on access to content through
Library censorship is further discussed later
in this guide.
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).
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.
next part (internet
filters, walls and tunnels)