Wednesday, 17 July 2013

Defending Free Speech, Weather Permitting...

You know those friends who are all joy and happiness until trouble comes along? The ones who are always there to have a good time, and tell jokes, and hang out, and be merry, right up until the point where they encounter a tiny bit of resistance or inconvenience? These are known as Fair Weather Friends. The original idiom was 'S/He is a fair weather sailor'--meaning that as long as there are no stormy skies or rough seas, this person is an expert over water. Once the chop agitates and the white horses rear up, however, they crumple, or disappear. 

A surprising amount of people are Fair Weather Sailors across a range of different issues. People are all on board with stopping animal cruelty, for example, until it comes time to declare themselves vegetarian. I'm not excluded from this. I eat meat, I know that the means of acquiring it aren't fantastic, and yet I can't stop. I'll loudly speak in favour of animal rights but, when the chips are down, the speed at which I will scoff down scotch fillet is limited only by the dilation of my throat. I am a fair weather supporter of animal rights.

The list goes on, seemingly forever, and encompasses almost everything. There are fair weather political activists, fair weather religious folk, fair weather atheists, fair weather LGBT supporters, fair weather feminists...pick an ideology or issue. They're there, and, unfortunately, they're the majority.

There is one particular issue, however, that seems to attract the most strikingly clueless fair weather supporter. It's a sneaky one, because a lot of people don't realise when it is being challenged, or indeed even what it is.

I'm talking about Freedom of Speech, and specifically the lack of it, in Australia. 

Let's Not Be Too Sensationalist...

I don't give the media any quarter over their penchant for the sensational, so let me dial my own back a bit. 
Free Speech doesn't technically exist in this country, it's true.  It never has. At least not in the sense that it exists in the United States. A great amount of confusion over the issue of free speech stems from the fact that we are not America, and do not have the same enshrined liberties and freedoms as the citizens of the US (PRISM notwithstanding). The United States has a Bill of Rights, which specifically codifies and makes enforceable laws pertaining to the freedom of expression and speech. Oddly enough, it enshrines that right in the same breath as it guarantees religious freedom, making for one of the most spectacular schizophrenic bits of law ever conceived. That, however, is a topic for another day.

Australia has no such thing. There is an implied right in the Constitution of this country that the Parliament may make no law inhibiting political communication. That's not the same thing. It has to be stated clearly: Freedom of Expression by the citizenry of Australia is not in any way protected by law. 

It's lucky, then, that it exists by default. It is assumed by lawmakers and nearly all people living here that a right to free speech exists, even if it isn't written down somewhere. It's extremely rare that this unspoken principle is violated. For everything that I'm going to say beyond this point, I want it known that I am not taking the position that the government of Australia is a tyrannical, Orwellian juggernaut of suppression. Nor do I think it even possesses the potential to become one. All in all, we have it pretty good here, and none of the issues as I see them would be instantly resolved by the implementation of a Bill of Rights. This is not a lobbying post for that Bill, so you can take back that sardonic eye roll right now, law and politics students. I am a font of nuance.

What I am arguing is that our freedom of speech and expression is being trodden on by institutions that should not have the right to do so. We have a right to be angry about that, and we ought to be. Convincing people of this?

That's a bit of a struggle. 

But Mitch, do I even know what freedom of speech is

No. Probably not. 

In all honestly, you don't know. You've got a vague idea. Maybe even a really honed idea. It's still very likely wrong. This is where three quarters of the problem lies, and it is one of the reasons why the world sorely misses Christopher Hitchens to sort it out so that nobody else has to. His amazing scotch-and-cigarette scented breath now spent, however, it falls to the lowly amoung us to do what we can.

When I say freedom of speech or expression, I am talking about precisely this and nothing else: 

The Government may not intervene in matters of communication between two entities unless the content of that communication is shown to be illegal or directly harmful.
I am not  talking about this, which is the definition that Google throws at you:

The right to express any opinions without censorship or restraint.
Bugger that. That isn't correct. Forget everything about that. Freedom of Speech in that  sense can be limited in any number of ways for very legitimate and (mostly) economic reasons. The disparity between these two definitions accounts for much of the confusion about what does and does not violate free speech conditions.

I'll show you. 

The Fair Weather Free Speech Brigade

Eddie McGuire makes a gaffe on air and is threatened with being yanked from radio. This gaffe is monumentally stupid, even he acknowledges so, and sections of the community want him off air. The immediate response across the web is as follows (Verbatim quotes are taken from Facebook, Comments Sections and Blogs that I won't link to. These people didn't sign up for a pillorying on some silly blog):

Isn't one of the greatest things about being an Australian is having Freedom of Speech? Now we can't take the mickey out of people because they're soft AND we have a Freedom of speech within an approved shortlist of words....


It was conversation, lighthearted in its intent, and a consequence of what we used to call free speech. As a defender of same...
Go after real racism not what someone perceives is racist.I thought there was free speech in Australia apparently not.
Elsewhere in Australia, Howard Sattler asks the Prime Minister if her husband is homosexual on air, making a mockery of her relationship (already the subject of undue criticism) and offending just about everybody, not the least of which being male hairdressers who are not gay and gay men who dislike ancient stereotypes. He was pulled from the air. The only-too-predictable reaction:

Where has free speech gone?  Howard Sattler is a radio DJ, he was interviewing Julia Gillard.  If his question was offensive then she should have just passed on it.
Free Speech in Australia just died a little more yesterday with Sattler's sacking by 6PR. As the old saying goes "I may not like what you say, But I'll defend to the death your right to say it". Australia now a joke of a nation under Gillard, who wants us all silenced.

It seems like Shakespearean fools could get away with much more freedom of speech in relation to their rulers, than was allowed to Howard Sattler in this incident.
These are merely recent examples. You can also look into Miranda Devine claiming that protests against an anti-islamic politician were the death knell of free speech in this country. Or peruse the rabid frothings of the media when they thought limiting free speech was the same thing as restructuring media ownership
What you are witnessing in each of these cases is a fundamental misunderstanding of what free speech actually is. It is the confusion of the second definition with the first. It's the assumption that free speech means getting to say whatever you want whenever you like, and that everyone else must sit there and remain silent as you do so.

These people believe they've identified an injustice. They want to shout from the rooftops about it. 'This country used to be great, but now I can't even use racial slurs for fun and I don't know who I am anymore!', is what they're saying. Some of them will even have the prescience to go high-concept with it. 'I don't agree with what they're saying, but damn it, they have a right to!'. 

They have numbers. They see someone being 'censored'. They think the fight will be easy, and so they speak up. The weather is fair, my friends, so let's all pile on while there's no chance of getting wet. 

First of all, Free Speech Stops Where Private Enterprise Begins

Howard Sattler is sacked from a radio station. Sections of the community campaign to remove Eddie McGuire. Catherine Deveny is fired from her job over a tweet. 

In every case, these people absolutely had the right to say these things. Nobody took away their right to say these things. 

But they do not  have the right to continued employment in the wake of their broadcast free speech. That would be up to the employer. And when you impugn the intimacy of the Prime Minister's bed chamber to her face before an audience of thousands, you're not likely to have put up a barnstorming case for yourself as an asset to the radio station. 

Private enterprise may summarily hire and fire you for just about any non-discriminatory reasons. If you go out and get drunk and disgrace the company, you're gone. If you say something that offends half the country, also gone. Companies, businesses and corporations are not bound by the laws of free speech even if  they existed, which they don't.  

In most cases where people are decrying infringement of free speech, there has been no infringement. They're simply indignant that an offensive opinion has drawn such a reaction as to unseat someone from their job when they likely share that opinion. It's really, really easy to defend it when it hasn't even come under attack.

Second of all, Where the hell were you? 

The same people who will stamp their feet about free speech when it suits them are deathly silent when there is an actual case of infringement of freedom of expression. When the police were called to remove Bill Henson's photographs from an art gallery because they offended some patrons, they were unwilling to speak in his defence. When a film is banned for having extremely explicit or controversial content, they are silent.
The skies are cloudy. The seas are choppy. They don't want to get involved with actual free expression issues because, damn it, they aren't sick pervs! And only sick perverts would fight to get a film about Murdersex made available to the Australian public! Or defend artwork containing images of naked children, no matter the artist's long history of integrity. In almost every case, this is how it goes. Content banned for its controversial content doesn't exactly draw a unified chorus of support from regular folks.

But that's not all. 

Free Speech isn't so cut and dry as defending avant-garde cinema from the sensibilities of conservatives. It's also about defending horrid conservatives from the sensibilities of hypersensitive liberal types. 

I'm imagining a lot of people are with me 100% until I mention that Andrew Bolt has been unfairly censored by the government. In one of the only  examples of government intervention of free expression of a journalist in this country, he was found guilty of breaching the racial vilification act, which includes a clause about causing offense to racial groups. 

That clause should not exist, and I'm happy to throw my support behind Bolt. Bolt, who I consider one of the worst people to have existed in the media landscape. Bolt, who I'd love to sit down to a glass of draino with. Bolt, who doesn't deserve a fraction of sympathy. But, unfortunately, Bolt, who deserves to be able to publish his views with the permission of his publisher without being censored by the Government.

The Government does not have a right to legislate against offense. It doesn't get  to determine what is and isn't appropriate for people to write OR read. As long as it isn't illegal, it is publishable. The loophole being that the vilification act is a piece of legislation. A piece of legislation that oversteps the mark to the detriment of us all, including the racial groups that it exists to protect.

In any case, I bring this up because it highlights that you cannot simply be a fair weather sailor on the other side of the fence. I can't just hang about with my left wing mates, espouse my hatred of people's misuse of free speech, and then say 'but because I don't like Andrew Bolt, I'm sure he deserved to be censored'.
He didn't. I have to stand apart from popular opinion because I know it isn't right. I claim the right to say so. You can't stop me. I have an assumed right to freedom of expression.

A right that protects me if I decide to launch into a verbal attack on the most antiquated and draconian of institutions. Which is lucky, because I'm about to do just that.


All material made for mass distribution to the public for entertainment purposes must be classified into one of a few categories: G, PG, M, MA15, R18 and X18 . These categories are meant to be used as a guideline for parents who wish to keep mature content away from their children. This is an admirable goal, and I believe the system is valuable.

But a loophole exists whereby a film or video game may be 'Refused Classification'. That is, the content is deemed so wildly inappropriate  for people under the age of 18 that nobody over the age of 18 may purchase it or view it. A film or game cannot be legally sold or viewed in this country without classification, so refusing it one is as effective a ban as you can get.

This is where the front line of free speech infringement is. It's just a shame that nobody's interested.

The Front Line is Ignored

And here, in the chopping list of films edited and banned for Australian censors. 

And here, in the list of banned video games.

As recently as last week, two video games were refused classification in Australia, which means they are banned from sale. Adults in this country cannot purchase Saints Row 4 and State of Decay, despite the content being perfectly legal.

A decision is being unilaterally made for all adults that they are unable to handle the content of these games. We need not determine for ourselves whether these games or movies are appropriate for our own personal consumption -- we have been unburdened of that responsibility. 

It is a responsibility that we did not give away, and it is one that I do not bequeath to anyone. I do not give the Australian Classification Board permission to rule on what is fit for my precious eyes and ears.  That's the end of it, right there - if it isn't illegal, I get to make the choice.

Except that I don't, because now possessing one of these games or viewing one of these films is a crime. Even if it's just me. On my own.

I'll rephrase: the content of these games and films is not illegal, but the government has declared that no Australian citizen may view or obtain them.

It is a textbook infringement of freedom of expression, and nobody cares .

So? They're Just Video Games

Oh, you did not  just think that. 

If you did, then you're such a fair weather supporter of free speech you're at risk of getting skin cancer. If your mind instantly wandered here, then you aren't just part of the problem. You are  the actual problem. You can't just pick and choose which aspects of life free expression applies to and which aspects it does not. It's not in your interests, and by that I mean your personal interests. You have a personal stake in Saints Row IV, and I'll tell you how.

If you don't want to identify and speak out against the free expression violation made against Saints Row IV, you are tacitly in favour of censorship. That might be fine while it's just these two games and a couple of movies that you've never heard of, but that's an horrifically short sighted way to look at things. 

What about in future, when the censors come to get their hands on something of yours? What are you going to say when they arrive to take it away? You already let them have Saints Row IV. You agreed that they are the ones who get to make the decision about what is appropriate for everyone , including you. Once you've agreed to that, how do you go about taking that responsibility back if you feel the censors have overstepped the mark?

Who are you going to look to for help? If you don't care about video games or films, who do you imagine is going to care about your niche *thing*, whatever it happens to be? Maybe you're a religious person, and the censors are coming to tell you that your holy book offends too many people and must be removed. Maybe you have an alternative point of view about a mainstream issue, and you are being utterly silenced by a government department that won't tolerate anything but the national narrative. Whatever it happens to be, how on earth are you going to convince people that it matters? They sure as hell didn't have a problem with the Saints Row IV thing. 

It's just you, fighting a battle all on your own, trying to have your tiny point of view heard amongst a sea of louder, more indignant voices who just do not understand. 

Well, maybe not just you. I'm there, too. Hi. We're suddenly the best of friends, eh? 

Defending Free Speech, Weather Permitting

How did it get to the stage that free speech is a catch-cry only of the casual racist and the irate shock jock? How did it become that free speech is so ill-defined by most people that it is almost universally misunderstood? Why do people only want to talk about this kind of thing when a newspaper confuses threats on its market share with the fundamental right of all human beings to communicate without government interference?

We have a nation of fair weather free speech crusaders, and that should worry us all. These people cannot be relied on to defend free speech in the event that it actually comes under threat. They're likely not to even notice when it comes under threat.  

I don't know what can be done about it, either. I'd argue for better education and a heightened national awareness of what it means to have freedom of expression, but that will not happen. People don't care. The weather's either so fair that they aren't required to do anything, or so turbulent that they dare not do anything. 

All I can do is ask the fair weather defenders where the hell they were when I wrote this post. The next time I see someone screeching that they can't slander all homosexuals and 'whatever happened to free speech', I'll ask them what they thought of the Saints Row IV debacle. Or if they were outraged about Ken Park.

If you take nothing else from this post, try this: Free Speech is yours. You own it. It cannot be taken from you by the government, that is the nature of it. When someone does attempt to take it away from you, you can and should get angry about that. When someone attempts to take it away from someone else, even if you are in no way affected, you should feel equally as outraged. Even if it isn't your cup of tea. Even if it makes you ill. Even if you abjectly oppose the speech being suppressed.

Just remember, you might be next.

And your decision to stay silent will condemn you.