Peter Singer on freedom of speech
August 30th 2006 18:51
Click here for the (very short) opinion piece.
Some of the quotable quotes would include: --
-- "Since it is sometimes necessary to use a little humor to prick the membrane of sanctimonious piety that frequently surrounds religious teachings, freedom of expression must include the freedom to ridicule as well."
-- "Yet, the outcome of the publication of the Danish cartoons ridiculing Muhammad was a tragedy. More than a hundred people died in Syria, Lebanon, Afghanistan, Libya, Nigeria, and other Islamic countries during the ensuing protests and riots. In hindsight, it would have been wiser not to publish the cartoons. The benefits were not worth the costs. But that judgment is, as I say, made with the benefit of hindsight, and it is not intended as a criticism of the actual decisions taken by the editors who published them and could not reasonably be expected to foresee the consequences."
-- "In the aftermath of World War II, when the Austrian republic was struggling to establish itself as a democracy, it was reasonable, as a temporary emergency measure, for Austrian democrats to suppress Nazi ideas and propaganda."
-- "Laws against incitement to racial, religious, or ethnic hatred, in circumstances where that incitement is intended to, or can reasonably be foreseen to, lead to violence or other criminal acts, are different, and are compatible with the freedom to express any views at all."
Peter Singer's homepage.
This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article Peter Singer.
Some of the quotable quotes would include: --
-- "Since it is sometimes necessary to use a little humor to prick the membrane of sanctimonious piety that frequently surrounds religious teachings, freedom of expression must include the freedom to ridicule as well."
-- "Yet, the outcome of the publication of the Danish cartoons ridiculing Muhammad was a tragedy. More than a hundred people died in Syria, Lebanon, Afghanistan, Libya, Nigeria, and other Islamic countries during the ensuing protests and riots. In hindsight, it would have been wiser not to publish the cartoons. The benefits were not worth the costs. But that judgment is, as I say, made with the benefit of hindsight, and it is not intended as a criticism of the actual decisions taken by the editors who published them and could not reasonably be expected to foresee the consequences."
-- "In the aftermath of World War II, when the Austrian republic was struggling to establish itself as a democracy, it was reasonable, as a temporary emergency measure, for Austrian democrats to suppress Nazi ideas and propaganda."
-- "Laws against incitement to racial, religious, or ethnic hatred, in circumstances where that incitement is intended to, or can reasonably be foreseen to, lead to violence or other criminal acts, are different, and are compatible with the freedom to express any views at all."
***
Peter Singer's homepage.
This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article Peter Singer.
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Comment by Nonymous
Philosophy Blog
Rising threat to free speech
The fundamental rights and freedoms of Australians are in grave danger from intrusive governments and secretive courrts, Geoffrey Robertson warns
In NSW alone, courts have imposed more than 1000 gag orders on the press.
Journalists are punished for refusing to betray their sources of news, no matter how important that news may be to the public. Today a claim for freedom of information can be trumped by a "conclusive ministerial certificate".
Freedom of speech is not a right, but merely a fragile implication from the constitution. And an implication means something we’re afraid to spell out loud and clear, as they do in the US Supreme Court when they talk of their First Amendment: free speech may be inconvenient, it may be dangerous, but on this we have staked our all. On our implication, you stake nothing.
That’s why when claims to censor and suppress are made for reasons of convenience or expediency, free speech so often gives way. And there’s no principle, no presumption in favour of free speech, and before you know where you are you’re, well you’re 39th in the world press freedom rankings and still falling. Below all the countries of Europe, below Bolivia and Estonia and South Korea, below Latvia and Costa Rica, and I’m ashamed to say, below Britain.
Today the freedom to publish is roundly and regularly and unanimously declared by the House of Lords, Britain’s highest court, in language that is never heard in our High Court other perhaps than from one dissenting judge. So how is it that Australia, a nation that prides itself on outspokenness, on frankness, on telling it like it is, has less press freedom than Malta or San Marino? In this time of the dark tailors of public relations spinning the most fabulous fancy dress for our political leaders, we must rely more and more on journalists to play the part of the small boy in the fable, pointing out that the emperor has no clothes.
Britain is still ahead of Australia on defamation law despite last year’s adoption here of a national code.
Another problem and this is perhaps the main reason why we are so low in the press freedom ratings is the protection of journalist sources.
Here again, ruled by the English common law, there is no protection.
Whenever I come back to Australia there’s always some journalist or other being threatened with imprisonment for refusing to act on professional responsibility and to dob in a source, as in the recent case of two Herald Sun journalists over a source for an important story of how the cabinet reneged on a promise to pensioners.
The Australian Government is conscious of how we're lagging in this respect and Attorney-General Philip Ruddock has produced a draft shield law but it's not going to be effective.
It doesn’t protect whistleblowers, it makes them more vulnerable because it only operates if the journalist comes forward and proves firstly that the source would suffer harm, and secondly, that the, I quote, "The nature and extent of the harm, outweighs the desirability of the evidence of identification being given." Well, pardon me, but how on earth is a journalist to prove that the source will suffer harm to a particular nature and extent unless he gives details of who the source is and details sufficient, very often, for the source to be identified? This draft bill is a snare and an illusion. It's no way forward.
Whether deliberately or not, it's a trap. Don't have anything to do with it because it requires the journalist to give enough information, very often, to have the source identified in order to claim the privilege.
Freedom of Information was an Australian Commonwealth first. But that groundbreaking law in 1982, now looks rather dog-eared and outdated. It's worked quite well for individuals, giving them access to personal data but it's not worked so well for the press. It bars access to cabinet documents, so if you want to stop access to a document just submit it to cabinet. Worse still, any government minister can issue what is termed an exemption certificate blocking issue.
That's what Peter Costello did when The Australian newspaper sought to obtain a document about the first home owner's scheme and the extent to which it had been rorted by wealthy homeowners. Mr Costello denied access, "because the release of the document will confuse or mislead the public and encourage illinformed speculation and debate".
Ill-informed speculation and debate, I guess, being a euphemism for encouraging criticism of Mr Costello.
The High Court, three to two, decided that they should uphold the exemption certificate. It was conclusive, so long as one reasonable ground was advanced to support the claim for secrecy.
The dissenting judges pointed out that government can always come up with one reasonable ground for suppression but, of course, there may be many more overwhelmingly in favour of transparency. And if this decision stands then the media applicants can never succeed and the dissenters are obviously correct. The courts themselves spend their time deciding between good arguments and arguments that are better. it's quite clear that there will be no effective review of government claims to secrecy, and government could neuter FOI by simply producing an argument that it would be confusing to the public if embarrassing documents were released. It's not a decision, I think, that would have been reached if that court had been required, under a Bill of Rights, to interpret legislation as far as possible to effectuate freedom of access to information.
Another development that is censoring the mass media, and which seems to be indigenous to Australia, is the extraordinary increase in suppression orders issued by courts which stops the reporting of evidence that's being given. Ten years ago there were less than 100 in Australia. Now, in NSW alone, there are more than 1000. This is disturbing because it is a fundamental principle of open justice that justice must be seen to be done. It's been a principle since before Magna Carta. Wigmore, the great American exponent of evidence, saw the open justice principle as the basic guarantee that trials would get to the truth.
Witnesses are less likely to lie if they know their evidence will be reported and others will come forward to confound them.
The highest courts of other countries have added further reasons, the education of the public in the way the legal system is working. Of course, publicity is often embarrassing and inconvenient and a case can often be made to a soft-hearted judge to keep the evidence out of the newspapers. But if the open justice principle is a principle, and not just a sentiment, these claims must be resisted. And the very number of suppression orders that are being granted suggests that they are not being resisted often enough.
The media has to battle to obtain the release of newsworthy information at one extreme. The names of convicted murderers and paedophiles, it's incredible that they should be suppressed. At another lower extreme, the affidavit revealing Eddie McGuire's wish to "bone" Jessica Rowe -- whatever that means -- is an example of a suppression order that is unjustifiable. Every lawyer knows every reporter should know that there are occasions when reporting of evidence may have to be postponed to prevent prejudicing jurors in related trials but these occasions should be rare. The fact that they are happening so often suggests the need for a careful inquiry.
The print and broadcast media have made common cause to challenge over-broad gag orders. The media here have to fork out $50,000 every time they challenge a suppression order. Another example of how free speech in Australia is turning into expensive speech.
Well, there are other dangerous developments that show how vulnerable our media is without a free speech guarantee. In Western Australia, the government is threatening to withdraw all advertising from The West Australian because it doesn't like its coverage. That has been held unlawful in Britain.
Big business is starting to exploit Section 52 of the Trade Practices Act, as a way around defamation, suing for misleading conduct with no, of course, public good defence. We've got an amendment to the Trade Practices Act which is going to outlaw the provocation of secondary boycotts. So that arguing in favour, for example of boycotting a firm that maltreats animals or employs slave labour in Third World countries or despoils the environment, may become a victim of this amendment.
Half a million dollars is the maximum fine for an individual, half to three-quarters of a million for a media corporation.
The customs official who leaked a report containing details of serious security problems at Sydney Airport, a report ignored by the Government, got a criminal conviction and a suspended jail sentence. And then the Government upgraded the security. No protection for whistleblowers.
And government departments are starting to bring in regulations stopping their officials from talking to journalists. That's been declared unlawful in Britain under the Human Rights Act. Even the Law Society is talking of bringing in regulations to stop solicitors talking to the press, which is extraordinary.
Sedition laws have been revived with all the archaic baggage, making it a crime to bring the government into hatred of contempt and stir up class hatred. Well, I think Mark Latham got away with it but would an outspoken Muslim? And it does exercise a chilling effect. Theatres, artists are exposed to increases in police powers. Licensing of the press is to be brought back. The very licensing that John Milton killed off in England in the 17th century, Mr Ruddock says that he plans to extend censorship powers to a new category of books that glorify terrorist acts. So don't write a sympathetic biography of Robespierre or of Nelson Mandela.
But, of course, these slow erosions of freedom can be held in check and, indeed, it's fair to say that Britain has a whole swathe of terrorist legislation which Australia has largely copied but the difference is that in Britain they're not used against investigative journalists and can't be because of the safety net of the Human Rights Act and the guarantee of free expression. Here, there is no safety net. Something's missing, something's out of whack. Of course, journalists aren't being killed, editors aren't being horsewhipped, the newspapers aren't be closed down as they are in some countries. But there is a disturbing pattern of erosion of newsworthy information. An example I think, of a systemic defect in the common law.
We are the only advanced liberal democracy left that doesn't have a guarantee of freedom of expression in our law, and why not? One reason, ironically, is that the media itself is not being supported. A measure that enhances everyone's fundamental rights, not only the right of people to receive newsworthy information through the media but of people when they're unfairly treated by state officialdom, has been greeted in some quarters by a suspicion verging on paranoia. It undermines parliamentary democracy, say some ill-informed commentators. Well, it doesn't in every other advanced parliamentary democracy. Do you really believe that parliament, that sits infrequently, is going to rectify the tens of thousand of abuses that ordinary citizens suffer from bloody-minded officials? Of course parliament may rectify the odd abuse where it's spotlighted in the media.
But the great beneficiaries of the Human Rights Act, of the due process guarantees in Britain, have been just ordinary citizens who've been maltreated by official incompetence or bloody-mindedness. They're the people that a Bill of Rights helps.
Of course, a Bill of Rights doesn't overcome parliament, it doesn't allow judges to strike down legislation as they do in America, but to interpret it requires them simply to interpret legislation and to develop the common law as far as possible with respect to the fundamental principles of individual liberty, the most fundamental of all being the freedom of expression. If they can't they simply issue a declaration, a signal to parliament that here is a black spot, here is something that needs parliamentary remedy.
But at the end of the day, under any legal regime, there'll always be exceptions to the free speech principle. There will be cases where the presumption in its favour will be overridden. There's no right to cry fire in a crowded theatre and those who urge violence or brainwash people into suicide bombings can always be prosecuted for incitement to murder.
But there will be cases where comments about defendants facing juries, or facing sentence, will be postponed. We abandon the fair trial right at our peril. A Bill of Rights comes, and this is something that I think unnecessarily unsettles the media, with a degree of privacy protection, thereto, a subject in which it's easy to be paranoid. We're all entitled to live part of our lives, that part that connects with our home and family, behind a door marked "do not disturb". And that applies to public figures as well so long as the protection is limited to intimate personal fact medical records, school aged children, freedom from bugging and secret surveillance always subject to a public interest override, the balance between privacy and press freedom can be satisfactory.
A media that wants and needs and deserves freedom to publish newsworthy facts must accept some limit on its right to rifle the intimacies of a citizen's life, so long as the exclusion zone is limited to the bedroom and the bathroom and the changing room, the school, the hospital and the grave.
Australia's media freedom ratings have slipped and will continue to slip because of this systemic defect: our failure to make legal provision for a right that is fundamental to democracy. But that same failure has, I think, been responsible for another decline in this country's significance; the international power and persuasiveness of the jurisprudence that emerges from our courts. It's not perhaps often recognised but there have been times when Australian court judgments have carried enormous weight in courts around the world, certainly throughout the Commonwealth.
The Dixon court in the 50s, one example; the Mason court in the 80s.
If there were an Olympic record for teams of judges, and why not since they have Olympic medals for tae kwon do and beach volleyball, Australia the Mason court would have won gold year after year. The quality of its jurisprudence was simply the best in the world at the time. It was often quoted. It had persuasive force around the Commonwealth. But times move on and the courts of other major countries now base their decisions upon human rights principles to which our courts can't contribute because we have no Bill of Rights to interpret.
So I've noticed, and I do appear in a lot of international courts and courts around the world, a decline in the relevance of Australian jurisprudence. It's not cited very much or at all when the liberty of the subject is at stake. Our decisions are not quoted and that has nothing to do with the calibre of Australian judges and lawyers which remains as high or higher than anywhere else. It has everything to do with the failure of parliament to provide them with the modern machinery for the job of safeguarding the liberty of the subject. Without a Bill of Rights to serve as a principal basis for decision-making, the judgments of Australian courts are now of less consequence in the world and less relevant to the development of international jurisprudence at a time when that has never been more relevant.
Academics talk of the diffusion of law, by which they mean the receptiveness of courts and legal systems throughout the world to each others work: a striking aspect of globalisation. This is a pity for Australian lawyers denied the opportunity to participate fully in the development of international human rights law. But it is also, I believe, a pity for the people of Australia denied the most modem mechanism for holding governments and powerbrokers fully accountable.
So there is the connection, I suggest, between the slipping in Australia's world press freedom ratings and the slippage in the influence of Australian judicial decisions, a slippage that could be reversed by adoption of a Bill of Rights which requires a presumption to be made in favour of freedom of expression. Such legislation would not only serve to protect news gatherers, it would perhaps more potently educate future generations of lawyers and judges about the importance of this right in democratic society.
You see, we lawyers are what we eat; we are what we imbibe; we are what we learn; we follow the law. The most active judges on human rights issues now are judges who wouldn't have dreamt of a human rights sitting in the commercial court all their lives. We follow the law. Give us the opportunity and we'll take it in memory of the levellers and John Wilkes and Tom Paine and those who went to prison for the press freedom.
George Orwell, in his introduction to Animal Farm, described freedom of speech as the right to tell people what they don't want to hear. And that was appropriate because his left wing publishers refused to publish Animal Farm because it might give offence to Stalin.
Freedom of expression can be upsetting, it can be uncomfortable, it can be shocking. But at a time when not only governments but other most powerful institutions in society are setting up defensive barriers to communication are concerned in what they term managing media risk, i.e. not talking to journalists or telling them lies, we should provide a legal encouragement for transparency.
In Australia we could do it by piecemeal reform, by a proper shield law, by amending FOI and so forth.
But piecemeal reform will not deter other suppression orders, will not deter the use of the Trade Practices Act, will not deter regulations against soldiers and solicitors speaking to the press. We need a law that requires all decision-makers to put the full weight of freedom of expression into the scales against the argument for secrecy. It won't always prevail but it will do so much more often and, I suspect, than it does at present.
Journalists must be trusted with the power to point out when emperors have no clothes. A trust they might then repay by acknowledging when their finery is genuine.
Renowned Australian-born and Londonbased lawyer Geoffrey Robertson QC has spent almost four decades fighting landmark cases for the media around the world. This is part of a speech he gave this week in Sydney in support of the Right to Know campaign launched by Australian newspaper publishers.