Fifty feet tall and revved up too high… Should there be a legal response to those gallows?

In 2012, there was a protest in Sydney inspired by the film, Innocence of the Muslims.  The most notorious image from the protests was of a child carrying a sign that said ‘Behead those who insult the Prophet’.  There was political condemnation and calls for the child to be taken into protection from the parents.  To their credit, NSW Police largely deescalated the topic.  They checked that the kid was okay and mostly left everybody alone.  To the best of my knowledge, no counter-terrorism offences were made at the protest; just the usual biffo with cops.

We all know this dance.  Protestors protest.  One side of politics calls for cops to crack down on the protestors; the other side tries to argue that the protest isn’t that big a deal.  The cops usually do the right thing, and then we all swap sides for the next protest.

A few days ago, the rabble of protestors who generally oppose a range of things related to public health measures in Victoria rocked up with a gallows.  But they looked like this, so nobody cared:

A day or two later, somebody decided to make a gallows that looked a bit more serious:

The second gallows really, really upset a lot of left wing social media because the craftsmanship was simply too good.  If you want to have a protest with effigies and nooses, you need to make sure your props have Theatre Kid Vibes.

There’s nothing new about effigies and nooses at political protests.  A few effigies of Tony Abbott got set on fire.  Really, really gross stuff happened to effigies of Trump; similarly unhinged stuff happened with effigies of Thatcher.

The question is when do we think it’s gone beyond Political Theatre and into the realm of when the cops should get seriously involved?  On social media, people expressed the view that this was a serious death threat, that the counter-terrorism police should be shutting everything down, and that the protesters were being treated with kid gloves because they’re white.  Even more interestingly, some people also expressed the view that what was different about this protest was its content (it was alleged to be a neo-Nazi rally), and the content should be regulated.

We can make short order of the bulk of the discussion.  As usual, people were very quick to make the claim that this wasn’t a freedom of speech issue because it involved a death threat.  This was a surprising take because it wasn’t clear that there was a death threat involved.

Death threats are an interesting beast to intuit.  If we locked up everybody who wished death upon somebody, our jails would overflow with people prone to hyperbole.  Twitter notoriously over-polices death threats, now issuing ‘settle down’ bans to anybody who suggests that we should kill all Boomers.  And, of course, we had the rather awkward debate about offensive art prompted by David Finnigan’s Kill Climate Deniers (I was twice a panellist to discuss offensive art, prompted by this play).  A death threat is more than mere musing upon the untimely end of somebody else; a death threat is a statement that could cause reasonable apprehension of harm.  This isn’t a terribly high bar, especially given the catastrophic nature of getting the risk assessment wrong.  I’ve been on the receiving end of death threats from overstimulated lefties on Twitter that I had to take seriously because they did things like include that they knew where I worked and indicated how they wanted to kill me.  But rocking up with a prop gallows outside of parliament doesn’t really cause reasonable apprehension of harm.

I think this case in this regard is different from the political posters that included images of politicians printed in a gun sight.  That does look like it would cause reasonable apprehension of harm: ‘I intend that the politician will be shot’.

What is interesting is that even though I intuit the gun sights posters as causing reasonable apprehension of harm, the better view in the US was that it was protected speech under the First Amendment.  The test from Brandenburg v Ohio (1969) is ‘imminent lawless action’: advocating unlawful action can be protected under the First Amendment, provided that the publisher doesn’t intend the unlawful action to be likely or imminent.  The gallows would almost definitely be protected speech under the First Amendment; the gun sights are very likely to be protected.

In Australia, there are two sources of law likely to be relevant here.  At the constitutional level, the implied freedom of political communication; at the State level, the Charter of Rights and Responsibilities.  The implied freedom is unlikely to protect the gallows.  Banning the display of gallows or similar at political protests definitely burdens political communication, but banning them serves a legitimate purpose: we want a political debate that is less violent in imagery to ensure that political participation remains safe.  The Charter is more likely to protect the gallows as the test is a little bit different, and the Charter protects more than the implied freedom does.  Reasonable people might disagree about this very superficial analysis (one of the problems with having the Court play a policy role in determining the boundaries of freedom of speech).

But the elephant in the room remains the same: this is definitely a freedom of speech issue, and it’s not clearly a death threat.

More interesting was the comment that the gallows and violent imagery was wrong because of who was saying it (neo-Nazis, allegedly).  The argument I saw a few times was that all the stuff with Trump and Abbott effigies was perfectly fine because it was making political arguments that were important–that Trump and Abbott were bad–while the gallows in Victoria was making a political argument that was not important–that Dan Andrews is bad.

I’m very much on Team Ban Neo-Nazis, but I want that done through other legal options.  I’m less enthusiastic about content-specific regulation of protest behaviour: where you ban a type of political protest based only on the message.  So I am very much in favour of making it unlawful to espouse hate speech.  I want to extend s 18C of the Racial Discrimination Act to include other protected attributes.  No worries.  What I’m not in favour of is saying ‘Okay, well, violent imagery is okay provided that you are protesting in favour of these approved topics, but not okay if you are protesting in favour of these blacklisted topics.’  The banning has to occur higher up the stream for it to sit comfortably.

Again, in the US, you’re simply not permitted to have content-based regulation because of the First Amendment.  Australia courts have flirted with the idea of looking to content-based regulation as part of the implied freedom, but haven’t embraced it.

To wrap this up, I want to draw particular attention to the most important question: should there really be a legal response to the gallows?  If we want political debate that is more respectful, calmer, and less violent in imagery, there are better ways of achieving this than by sticking the po-po on every hot head who breaches the Theatre Kid Threshold.  For example, maybe we should issue fines to media companies that air opinions that some protestors should be hit with car?