Thinking about free speech after some argument over at Darp’s weblog. I think the refrain of “free speech is free speech is free speech” is not as cut and dried as people make it out to be. Whilst I support a general principle that all speech should be free I think the reality is a lot more complicated. An interesting example, which has been both extensively documented and disputed under US law, is free speech whose intent is to solely inspire criminal actions or violence. The US Supreme Court originally described this as so-called ‘fighting words’ statements (Chaplinsky v. New Hampshire 315 U.S. 568). Since then a whole wave of cases and rulings have swung the pendulum, limiting and freeing this kind of speech depending on the governments of the day, the mood of the community, and the flavour of the Justices. The current crop, arguably an odd mix of Strict Constructionists (and for some fascinating argument on what this is and whether it actually exists see this excellent exchange of ideas) and judicial activists, have been back and forward on the topic of the strength of the 1st Amendment quite a bit and I expect any future Justices (almost certainly likely to be appointed by George W. Bush) will cause further debate. But I digress… Back to free speech.

Whilst it is nice to want to adopt a purist-approach to free speech – all speech is free and must be always defended – I don’t think the broader community in Australia and the United States agrees. Laws around this issue in Australia and the US are considerably more complicated than this because the community wants them to be. Restrictions on so-called ‘hate’ speech inspires a vitriolic response from the far left and right wing but it also inspires a strong reaction from the broader community. People do seem to want to restrict expression, including speech – often irrationally. Hence a government enforcing ‘all speech is free’ NEVER works. You have to accept that some speech is never going to be ‘free’ because it is not acceptable to the community that sets laws. Hence the concept of ‘free speech is free speech is free speech’ is unsupportable in a democratic society.

For example, in most instances I am familiar with (mostly in the US), communities supported laws restricting speech they weren’t happy with. Whether that speech be racial hate speech, anti-pornography, flag burning, separation. of Church and State issues etc, etc. Often those laws were struck or watered down by the courts as illegal (in a Constitutional sense in the US) but the support for them came from the people. I don’t think you can dictate a ‘every speech is free speech’ approach to people – they won’t abide it. Another example would be paedophiliac literature or images? Find me a representative majority of Australians who’d consider that free speech. My opinion:

1. Let the people determine, via the normal democratic means, what is free speech and what, if any, speech they want restricted.

2. Have a strong set of principles above those laws (such as the Bill of Rights) which uphold the principal(s) of free speech.

3. Have a justice system which regularly tests the people’s laws against the principles and mediates them.

Not perfect. But better than assuming people will always do the right thing and respect all speech.

P.S. I wonder where on the political spectrum this piece of thinking rests. Social Democrat? Social Humanist? Something along those lines. Whatever I am sure I’ll be labelled a leftie again by the raving hordes of “Free speech! Free speech!” RWDBs.

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