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Had a comment from another blogger today (a very welcome surprise) who mentioned his thoughts on freedom of speech. Find his original article here and read the Two Percent Company rant it was responding to here. Anyway, here’s how I responded to his post: Your take on freedom of speech is interesting, and I recall your comments on the Two Percent Co’s rant. I’m not sure I have a complete understanding of your position, however. Perhaps you can help me out? You seem to be of the opinion that freedom of speech is all very good in theory, but in practice, such idealism is unrealistic. But, do you advocate legal restrictions on some speech? Should a speaker be held legally accountable for the consequences of offensive speech? I would say absolutely not on both counts, and that’s what I see as the meaning of freedom of speech. Just because you have the right to say something does not mean that you should, but there should be no legal impediment to you doing so if you wish. There may be social consequences for voiced opinions (as in your political example), but there should not be legal consequences (prison/fines). You said: “Speech is free to go wherever it can, provided it doesn't cause harm to anyone.” How can mere offence be deemed harmful? You said in your comment that scepticism should be applied universally, but how can sceptics publish anything without the freedom to offend? Speech of sceptics will always be offensive to believers, regardless of the absurd belief they happen to be debunking/critically analysing. Or is it only offense that causes violence that should not be tolerated? Why? Is it our fault that these people’s beliefs have lead them to violent acts of lunacy? What if astrologers rioted over a skeptic magazine article exposing astrology for what it is (a steaming pile of horseshit)? Why should we protect the beliefs of violent nutbags and not the beliefs of peaceful nutbags? The Mohammad cartoons example is a good one for this debate, as it is such an extreme case. You have argued that they should not have published the cartoons, and perhaps they shouldn’t, but as far as I’m concerned, that is irrelevant. They published the cartoons, and it was their choice to do so. With freedom of speech, they have the right to make that choice, regardless of the consequences. To take away that right would require legal restrictions on speech, which would necessitate the imposition of fines or prison sentences for infractions. But what speech should be restricted? This question indicates why freedom of speech advocates are against any and all restrictions of speech. Where does one draw the line? One person’s offence would be the next guy’s barrel of laughs. What is deemed offensive is completely subjective, so how can any line possibly be drawn? The same can be said on the censorship of film/tv/music/videogames issue. You said of the newspaper’s position: “Some would call this conviction. Others would call it gross negligence.” Again, the line is subjectively drawn. It is not surprising that Muslims were offended by what was published and they have the right to voice their outrage and offense, but words should be countered by words, not violence. As the Two Percent Co pointed out, their response was hugely, insanely out of proportion. Yes, if that newspaper had not published the cartoons, the violence would not have occurred. Of course, if the rioters weren’t fundie believers in absurd fairy tales, the violence would not have occurred either. Blaming the newspaper for the violence is simply an attempt to shift the blame away from the perpetrators. The newspaper in question cannot be held legally accountable for the actions of the rioters. They did not force the Muslims in question to commit acts of violence, they made that choice of their own volition. As TPC also pointed out, the majority of Muslims exercised restraint and did not take part in the violence, also their choice. Now, as a hypothetical, imagine we do not want such violence to reoccur so we outlaw all publication of Mohammad cartoons and other material offensive to Muslims. Such laws would positively reinforce the disgraceful behaviour of these violent nutbags. It would also be a great example to others of how to get their precious beliefs protected by law. You also mention the Iranian newspaper’s call for holocaust cartoons. As the TPC pointed out, these people simply do not get it. The publication of these cartoons is extremely unlikely to result in any violence from the Jews, thus proving the TPC’s points. In fact, a Jewish newspaper has also put out a call for submission of holocaust cartoons, showing their support for freedom of speech at the price of offense. In conclusion, your arguments seem to be about whether certain things should or should not have been said, rather than against the legal position of freedom of speech. As you said in the final sentence of your post: “Jyllands-Posten will be considered by historians as partly responsible for the carnage that we are seeing.” Definitely, but as I said earlier, they may be held socially responsible, but as long as they are not held legally responsible (staff rounded up and thrown in prison), then freedom of speech is alive and well. | ||
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| Hi Adam,
Thanks for responding to my comment. Fellow Melbournians are always welcome at my blog. I probably should point out that my position is not defined very well, yet. I, personally, am undecided about the whole Freedom of Speech thing. My point in writing the article was to point out that no one has yet come up with a consistent set of reasons why freedom of speech is a sacred cow. All arguments go along Bob's line of thinking (whom I converse with in my blog post) and that is just to paraphrase the concept title and provide specious reasoning. You wrote, "do you advocate legal restrictions on some speech?" Actually, I'm undecided about this in quite a lot of instances. Take this example. If I sell you a car that, I say, can allegedly be driven underwater, this is harmless, I think. If, however, you rely on that statement of mine and end up drowning, I am responsible. You, or rather your estate, could sue me, or prosecute me, and you could do so in Contract, in Tort or under Section 52 of the Trade Practices Act. Extreme example? OK. Then how about if I said that the car could take bigger bumps at higher speeds. You hit a patch of unsealed road at 100km (well within what I've told you), and end up flipping. Would you still support my right to say anything at all? In this instance, it may have cost you your life. Do I support Tort Law, Contract Law or the TPA? Again, undecided. But they do have their good points. What if these laws didn't exist? Personally, I'm not going to speculate because I believe that it's an unrealistic scenario. You also wrote, "How can mere offence be deemed harmful?" Not sure, but your average child psychologist would certainly have a few things to say about this. Some of it answering your question directly, I dare add. Perhaps the best people to answer your question would be Penny Easton's family. After all, it was Easton herself who was offended, but it was her family who lost a loved one. Don't take this the wrong way, but that is incredibly fucking harmful, and I would feel patronised were you to suggest otherwise. Here's an experiment. How about visiting the Eastons, and suggesting to them that Penny Easton killed herself for a entirely unrelated reasons? You'll get to see first hand whether offence is harmful or not. Certainly, I'm not convinced that legal remedies or violence is the answer. (In hindsight, what false representations I might make about the car that I'm selling would certainly and universally be considered offensive.) On a side note, I think it's an incredibly twee attitude to suggest that only offence comes of saying the wrong thing. I may have misunderstood you, but it did appear that you seemed to focus on offence to the exclusion of everything else? But, contradictory as it might sound, I haven't actually formed a definite opinion on this. Take my blog for instance. I go out of my way to offend a lot of people every time I write just cause I'm a muck raking so-and-so. I intend to cause offence, sometimes. And so I do. And I rather like being able to do so. So hence why I'm undecided on this. You also wrote, "What is deemed offensive is completely subjective, so how can any line possibly be drawn?" and also, "“Some would call this conviction. Others would call it gross negligence.” Again, the line is subjectively drawn." There was no subjective line in Jyllands-Posten's case. Flemming Rose's editorial makes it crystal clear that they published to seek a reaction. In addition, and this comes back to your offence point above, when I offend, I do it. I take responsibility for my actions myself. Flemming Rose's editorial spelt out in huge flaming letters that if anyone else's (i.e. not Jyllands-Posten, Rose or any of the cartoonists etc) lives or property was endangered because they chose to publish, then that was their bad luck. Fuck. I could, for a laugh offend the bejesus out of the Australian Federal Police by telling them that my employer is a terrorist. This would not at all be considered funny. Neither would this be considered remotely subjective. Stupid anti-terrorism laws notwithstanding. I'm quite clearly with you when I agree that there is a subjective line. And that is often hard to see. However, and it appears that our opinions differ here, Jyllands-Posten took a running leap and cleared that line as though it were a long jump pit. Lastly, you wrote, "your arguments seem to be about whether certain things should or should not have been said, rather than against the legal position of freedom of speech." Quite right. Perhaps that was where I ended up. As I said before, I'm somewhat undecided on both. I did actually deliberately attempt to appear undecided on this. Mainly because I genuinely am. I might just query a couple of things in your response. You appeared to deliberately skirt some of the issues I raised regarding the Easton affair. In fact, you appeared to (somewhat mischievously, I felt) refer to this as my "political example". I take it that I'm mistaken? Also, you inserted the word "partly" into my guesstimate on future evaluations of Jyllands-Posten's liability. I expect that this was an accident? Lastly, you differentiate between social and legal obligations in your statement at the end. As a self-described "pragmatic small-a anarcho-capitalist" (geez, try saying that after a few drinks) I have to ask, "Why differentiate?" In the interests of consistency, shouldn't social obligations be considered next to legal ones? When people start to tell me that one should be considered independently of the other, I hear alarm bells telling me that another unrelated agenda is being surreptitiously pushed somewhat Trojan Horse-like. But all that aside, you totally provided a decent riposte to my post, and I would welcome you back to my blog at any stage. | |||
| Posted by Anonymous | |||
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| Whoa, apologies, Adam.
I honestly thought I'd entered my details in. That was me above. | |||
| Posted by Dikkii | |||
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| Hey Dikkii,
It would seem that I am also undecided about various issues that fall under the umbrella of freedom of speech. I am certainly not an absolutist, especially taking contract law/TPA into consideration. I’m not so convinced about the tort laws of defamation, which are consistently abused by the powerful to limit criticism, and should be reformed as soon as possible. I don’t think we stand so far apart on this issue as I originally perceived. I will make some additional comments, however. First off, sorry about the misquotation. You said “the party” as opposed to partly. It is interesting that I read it that way, as I’m sure I checked it twice. Lesson learned, I’ll copy and paste when I quote from now on. The reason usually given for the importance of freedom of speech is that it is imperative for the free exchange of ideas in pursuit of the truth. If the press does not have the freedom to seek and speak the truth about governmental activities, how can the electorate possibly make informed choices? How could democracy possibly work (not that it does)? In my comment, I was focussing on governmental restriction of speech (like sedition, censorship etc.), not civil laws such as tort, contract and TPA. I did begin writing about defamation, but then figured I’d crapped on enough already. Many absolutist supporters of freedom of speech use the slippery slope argument, but (as I think you’re pointing out) the slippery slope runs both ways. On one side is the totalitarian state, on the other perhaps, is anarchy. It would seem a balance must be struck. What freedom of speech means to me is that governments cannot criminalise speech (speech that explicitly promotes violence may be an exception), but that does not mean there cannot be some limits in civil law where harm is done to one party or another. I’m going to wade into some more subjective waters here. I think a differentiation needs to be made between speech that causes harm directly and speech that causes harm indirectly. By directly, I mean that the speech was the only factor in the resultant harm. The dodgy car salesman example you gave is instructive. I would not call this act offensive, as you did, but an outright lie for financial gain. Protections in contract law and the TPA are essential to protect consumers (parties with little power) from organisations (powerful parties). In the examples you gave, where death resulted from the lies of the salesman, that lie was the only factor that lead to the harm. I don’t think the same can be said for the Mohammad cartoons and Penny Easton examples. Many other factors were involved in the Mohammad cartoon violence, including their culture, religious beliefs, propensity for reactionary violence, anti-western sentiment, intolerance, character of individuals involved etc. In this sense, the cartoons were the final contributing factor, but not the sole and root cause. The same may be said of the Penny Easton suicide (although it’s impossible to say in a case such as this). Were the parliamentary comments really the sole cause of her suicide, or just the straw that broke the camel’s back? Was she already deeply depressed about the divorce? Is the husband blameless? Were there other contributing factors? I’m going to use an analogy in an attempt and clarify my position. Say we are at the end of a limited overs cricket match and the opposition requires 1 run to win. If a member of the fielding team drops a simple catch on that final ball, he will be universally blamed for the loss of the match. Why? The dropped catch is only one of innumerable factors that contributed to the loss of the match. We would be equally justified blaming the person who dropped a catch earlier, or failed to stop a boundary by a misfield, or all the batsmen for not making an additional run. Why does that one guy take all the blame? The way I see it, the newspaper and the parliamentary commenter are that poor guy shouldering all the blame, rather than their realistic portion, because they were responsible for the final contributing factor. I’m very interested to hear what you think on this. Anyway, on to some of your points. You mentioned protection of children from offence, and of course children should be protected from harmful material. Both the cases you mentioned, however, exclusively pertained to adults. Perhaps I’m way off here, but I would previously have considered protection of minors an entirely separate issue to freedom of speech. You’re right, I did focus on offence to the exclusion of everything else, mostly because I spoke pretty much exclusively about the cartoons affair and skirted the Easton issue (again, because I felt I was ranting on a bit). You said: “There was no subjective line in Jyllands-Posten's case. Flemming Rose's editorial makes it crystal clear that they published to seek a reaction.” Does this imply they published with the express intent of causing violence? I still think it is subjective. I would say that they published to make a point, not to provoke a reaction. The reaction could just as easily have been non violent protests. Do you think they really expected the insane level and form of the final response? You said: “when I offend, I do it. I take responsibility for my actions myself.” Exactly, you take responsibility for your actions, just as the rioters should take responsibility for theirs. Should you take responsibility for the actions of the people who read your blog and are offended by what you say? Of course not, you didn’t force them to read your blog, just as the staff at Jyllands did not force anyone to read their paper. You said: “Fuck. I could, for a laugh offend the bejesus out of the Australian Federal Police by telling them that my employer is a terrorist.” Once again, I would say that this comment is directly harmful (potentially), even if such a hoax only costs the police time and money to investigate. This is one of those areas where responsibility and restraint come into play. You said: “In the interests of consistency, shouldn't social obligations be considered next to legal ones?” What I meant by differentiating social and legal consequences is that every action and statement made in day to day life may have social consequences, but should not necessarily have the potential for any legal ramifications. I think that’ll do me for now. I look forward to hearing more from you. | |||
| Posted by ajscanlan | |||
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| Hi Adam,
Thanks for the response. You'll be pleased to know that this is my first longish thread since I started blogging again. Thoroughly enjoying it thank you very much. You wrote, "I’m not so convinced about the tort laws of defamation, which are consistently abused by the powerful to limit criticism, and should be reformed as soon as possible." I have to say a big "hear, hear" um, here. Funnily enough, I wasn't actually thinking about defamation at the time. I was actually thinking about other torts at the time - those being the Torts of Fraud and Negligence. BTW, you didn't need to apologise about the misquotation. Accidents happen, and I kinda thought that was what you'd done. You wrote, "The reason usually given for the importance of freedom of speech is that it is imperative for the free exchange of ideas in pursuit of the truth." Particularly with regards to defamation, which you highlight further down the paragraph. Look, I'll be blunt. I think that this is admirable, and I would prefer it. But there is often an agenda at work, here, too. Joseph Goebbels defamed an entire German ethnic group. And continued to do so. I belive that is was called the "Big Lie". If he were to try that one on today, the first defence that he would use would be Freedom of Speech. Never mind, that same as a shonky used car dealer, people would be relying on this as the truth. Particularly given his status as a government minister. Or maybe not. You also mentioned something about the "Slippery slope running both ways," or words to that effect. I personally think a better analogy is that the "slippery slope" itself (Christ I hate that cliche) runs one way, but Freedom of Speech advocates, depending on how hardcore they are, usually seem prepared to tolerate a little bit of, er, slippage. What I mean by that is that FofS trouser-wearers will proudly call for full freedom with one breath, and ask for some controls in other areas with another, for example, Contract Law. This, to me is either (depending on what mood I'm in) inconsistent, hypocritical or fraudulent. It is very few brave FofS campaigners who support unlimited, laissez-faire FofS. This brings me to an observation that I didn't make public at the time of the cartoons and that was this: Too many people used this as excuses to air predjudices about Islam and Muslims. I'll say this. I'm not ready to support full FofS just yet when you have the Australian media dominated by fucknuckles like Andrew Bolt, Janet Albrechtsen, Paul Gray, Babette Francis, Piers Akerman etc pushing their prejudices as fact. Notice that most of Australia reads News Ltd product, but only a very small proportion of their writers are not fascist pigs. Hell, The Oz has got to be one of the most right wing rags in the Western World. It seriously reads like a print version of Fox News, these days. But I digress. Although I'm undecided on the Mohammed cartoons, you also wrote this: "The same may be said of the Penny Easton suicide (although it’s impossible to say in a case such as this). Were the parliamentary comments really the sole cause of her suicide, or just the straw that broke the camel’s back? Was she already deeply depressed about the divorce? Is the husband blameless? Were there other contributing factors? In my conversation with "Bob" (which is not his real name) I pointed out that other issues such as the ones that you listed here are irrelevant. Easton did kill herself after being publicly named and shamed, and although these issues may have contributed, we do, in effect, have a jury that convicted the government in question over this. A jury of about three million members. Which is why you and I are going to have to agree to disagree on this. I will come back to the husband, though. I appear to remember the husband being cleared by the coroner of any wrongdoing, but my memory is completely sketchy on this (c'mon, this is twelve years ago). It is theoretically possible that he may have had a hand. One thing that I have been reminded through this is that Offence is very like the Tort of Negligence. "You can't guarantee that there is no one that you won't offend," runs an argument for FofS over Freedom from Offence. Negligence works the same way. You cannot guarantee that you will meet all your duties of care. Because if you breach a Duty of Care that was previously unknown, the only place that you'll find out is in court. Hence my skepticism at the use of this argument by FofS campaigners. Again, you and I will have to respectfully disagree. Incidentally, I view your cricketer argument as supporting my position. Everything else became irrelevant when he dropped that catch. When that match was lost, there was just that fieldsman and the ball. Which he dropped. Compare this to a street kid who has (extreme Bill Napoli position here!) been consistently brutalised by his Dad, developed a drug habit at the age of 10, been bullied at school, spent time as a call boy to support a raging speed habit and finally murders someone by knifing them in the carotid artery. Do we say that all these factors contributed to him killing somebody? We could speculate that that was the case. But does a court of law? Not normally. Normally a court will dismiss all these other factors as being irrelevant and just bring it back to the perp, his knife and the victim. Just how it is, and I guess I agree with the legal process here. You also wrote, "You mentioned protection of children from offence, and of course children should be protected from harmful material. Both the cases you mentioned, however, exclusively pertained to adults. Perhaps I’m way off here, but I would previously have considered protection of minors an entirely separate issue to freedom of speech." I really only mentioned it in passing and I should clarify this. Really, what I was doing was just answering your question about "when could offence be considered harmful". Protection of minors is not, repeat, not what I had in mind. Child psychologists often mention that a careless word can carry more harm more than a thousand punches to the face. I feel this is true for adults too - I still personally seethe with anger about a bare-faced and deliberate lie that I was told by a former manager of mine TWO WHOLE YEARS AGO that cost me approximately $25,000 amongst other things. Regrettably, I'm still so bitter about this that when I saw this bastard again recently, I imagined punching him in the face, quite vividly. One single solitary lie. And I was a perfectly rational, balanced, 31 year old male at the time. When child psychology can be so readily applied to adults, I wouldn't be so quick to write it off. Did Jyllands-Posten expect the level of violence they got? Well, it's hard to say. But the zeal with which Flemming Rose wrote his editorial has almost a hysterical tone to it. They were out to get a reaction, that's for sure. When it got violent, I'm certain that their first thought was, "Yes, we were right," and not, "Oh my god this is bad." You wrote, "Should you take responsibility for the actions of the people who read your blog and are offended by what you say?" If you swap the word write for "yell" and I yell "Fire" in a crowded cinema, well, yes. I should take responsibility for all those trampled to death on the stairs. Not much difference, only a context change. But these things are important, too. Lastly, I should also clarify what I meant by looking at legal and social obligations together. I'm very much a supporter of de-regulation in the theory that social pressure usually fills that vacuum but with less "red-tape". But if people have complete legal Freedom of Speech, hypothetically, and if they don't have social Freedom of Speech, then they simply don't have Freedom of Speech, yet. The small-a anarchist generally holds up a Danish community (oddly enough) called Christiania as an example of a lawless society where social norms have taken over from codified rules as a regulatory mechanism. (In reality, the whole place is run by capital-a anarchists who still believe in heavy regulation, but anyway...) I daresay that some of Christiania's social norms prohibit the saying of some things. Thus Freedom of Speech simply cannot exist. I can see that we'll again have to disagree on this. I suppose my end statement is that it is my belief that Freedom of Speech cannot, from a philosophical, legal and social perspective, possibly ever exist. Thus I'm never going to argue for it. But you'd be pleased to know that I wish that it could exist, in entirety, with no unpleasant side effects. | |||
| Posted by Dikkii | |||
| Entry 26 of 42 |
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