Quick Post: On the Freeness of Speech (reply to @citation_needed) #auspol #auslaw

Over on AusOpinion, I’ve argued that two recent court cases have breathed life into the entitled whining of freedom of speech advocates (link broken).

But — again — we are only hearing from one side of the debate, the side which thinks it’s intuitively obvious that Australia’s legal system failed to protect Banerji and the Occupy protesters.  The argument is a simple one: ‘Look at these people with whom you appear to agree!  If only we had a bill of rights, people with whom you agree would have been protected!’  It’s a narrow and shallow debate that overlooks the cost of free speech. [Source]

To show that the intuition is flawed, I’ve given several examples of how a constitutionally protected freedom of speech would adversely affect various progressive causes.  The point being, we need advocates to start engaging seriously in the debate with something better than absolutist slogans like ‘Free speech is the cornerstone of democracy’ and ‘The rights of all public servants are at stake here’.

Over on Twitter, M Nash (@citation_needed) has responded:

[tweet https://twitter.com/citation_needed/status/387723015343312896] [tweet https://twitter.com/citation_needed/status/387724903975489536]

On the one hand, this misses the point.  The point of my examples was not to demonstrate definitively that freedom of speech protections are a waste of time.  The point is to counter the intuition-pumps arising from the two court cases.

On the other hand, M Nash’s response is exactly the one for which I’m explicitly asking in the post:

This isn’t a debate between the hip cool progressives who love freedom and the crusty old conservatives who hate minority rights.  It is isn’t even a debate.  It’s just entitled whinging from people who opportunistically think that they would benefit from a constitutional protection of free speech. [Source]

If you think that US-style protections don’t work, put some options on the table and let’s nut them out.  Given that the mainstream media only discusses rights in terms of Bills or Charters, this would be an extremely welcome and productive development of the rights debate.

But don’t for a minute think that it’s an easy discussion.

Prima: ‘These court cases prove that we need better protections for the cornerstone of democracy!’

Secunda: ‘But the protections that you’re advocating would have major negative consequences.  Here are some examples.’

Prima: ‘None of those examples hold if you just ignore the protection mechanism that I’ve been advocating.’

Secunda: ‘So what protection mechanism do you have in mind?’

Prima: ‘We… We… We could have a whole host of exceptions to the freedom of speech.  We could have a constitutional protection for the freedom of speech, but allow the State to infringe it for matters of national security, protection of human health, for the maintenance of an impartial public service, and for the purposes of ratifying treaties.  Oh, or we could just limit the applicability of the protection.  We could have a constitutional protection just and only just for true political communication that’s in the public interest!’

Secunda: ‘Sure.  But these seem like very limited rights, and they look like they could be easily abused…’

And so on and so forth.  But this is exactly the debate that we should be having.  When advocates start braying for constitutional protections, we should hold them to account and make them defend their views.  Otherwise, it will always remain an entitled whinge-fest.

 

Related articles

• Quick Post: The Culture Wars and your weak Culture-Fu #auspol (onlythesangfroid.wordpress.com)
• Quick Post: Acknowledging feelings of horror while forming policy positions #asylumseekers #auspol (onlythesangfroid.wordpress.com)
• Some Doubts about McCutcheon v. FECMichael Ramsey (originalismblog.typepad.com)
• Twitter Finds Out That Free Speech Doesn’t Mean The Same Thing Everywhere (forbes.com)