FREEDOM OF SPEECH

THE MYTHOLOGY OF "FREEDOM OF SPEECH":

BULL WHIPS OR JUST BULL?While many support an exhibition of Robert Mapplethorpe's photography as a legitimate exercise

of freedom of speech, a large number of people simultaneously support laws that aim to make vilification unlawful. Does this apparent contradiction amount to a triumph of political

correctness? HARLEY WRIGHT a final year law student at the University of NSW comments.

It was a photo of Robert Mapplethorpe with a bull whip up his arse that launched his controversial photographic career. The 210 photographs featured in the Syd­ney Museum of Contemporary Art's (MCA) retrospective of Mapplethorpe's work demonstrate that his success is based on an ability to take a rigorously classical approach to subject matter that many would find confronting, if not offen­sive. It is testimony to Mapplethorpe's mastery of the photographic medium that shots of 'fisting' and other sadomasochis­tic images can be described without sar­casm or contradiction as beautiful photographs. These photos can be evalu­ated in the same terms as his shots of fil­lies, with comments directed dispassionately towards the classical com­position, the use of symmetiy and fight - indeed many reviewers seem to deliber­ately down play the content of these pho­tos.

However, it is the content of his photos that is relevant to this article. Lighting, technique and composition aside, the im­portant thing about Mapplethorpe's work is that some particular photos oould be construed as 'offensive' by a majority of Australians. Indeed this is the point of such a retrospective, the point which Chief Curator of the MCA Bernice Murphy de­scribes as "our mission and duty to chal­lenge people with the art of our time".

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Those on the religious Right of the politi­cal spectrum undoubtedly disagree with such a duty description and argue that the government should not allow the public display of such photos, or at the very least that no governmental funds should be made available to support such an exhibi­tion. In both tlie US and Canada curators of exhibitions very similar to the one dis­played at the MCA have been hauled into oourt facing charges of obscenity. Despite the legal risks, it is with a tinge of regret that Bernice Murphy informs me that there have been no candle-lit vigils, nor other protests caused by the arrival of Mapplethorpe at the MCA.

“ ...it is hypocritical to support a

Mapplethorpe retrospective while

simultaneously supporting the

existence of anti-vilification

legislation”

Disappointment would be under­standable, as the denunciation of such an exhibition as 'obscene and corrupting' and a contribution to the 'moral decline in so­ciety', allow the rest of us open minded, right thinking citizens to reiterate and re­inforce our ideals of tolerance and free­dom of expression. Mapplethorpe provides a paradigmatic case of why free­dom of speech is so valued in our society, and from a left wing perspective the exhi­bition is relatively straightforward. The explanation runs something like: "Sure Mapplethorpe may offend a majority of our community, but offensiveness is an in­valid criteria upon which to base laws pre­venting expression." However, problems occur when 'Mapplethorpe' is replaced by 'racism', 'sexism', or 'homophobia'. A law like the proposed federal racial hatred leg­islation clearly contradicts the liberal ap­proach to freedom of speech:

18C(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the peo­ple in the group. [Emphasis added]

'Acti is defined broadly to include 'words, sounds, images or writing to be communicated to the public'.

Many people who support such legisla­tion fail to see that it is hypocritical to support a Mapplethorpe retro­spective while simulta­neously supporting anti-vilification legisla­tion. Indeed it is this perceived opportun­ism, that which aban­dons 'principle' in favour of supporting the fashionable political position that is encap­sulated in that increas­ingly hackneyed turn of phrase: 'political cor­rectness'.

Free Speech and the Liberal Tradition

The right of 'free speech' uncompromis­ingly demands a central and elevated po­sition in liberal thought. After all, isn't this what distinguishes liberal democracies from authoritarian and fascist regimes? Free speech exists in its most virulent

According to three massive governmental reports; the Royal Com­mission into Aboriginal Deaths in Custody the National Inquiry Into Racist Violence and the Australian Law Reform Commission Report No 57: Multiculturalismand the Law, anti-vilifi­cation laws are a good idea. According to these reports the key to resolving free speech problems is to recognise that 'freedom of speech is just one of the values to be protected in a democracy' and that competing with freedom of speech is 'the right to live in a society free from racial ha­tred'. However, the 'right to live free from racial hatred' looks and smells like an in­vented right of convenience that posits a weak argument against the entrenched and glorified right of freedom of speech.

form in the First Amendment of the United States Constitution, which Henry Louis Gates Jnr has described as the "cen­tral article of faith in the civic religion of America". In that oountry periodic sacri­fices must be made (Holocaust survivors in Milage of Skokie v National Socialist Party of America, blacks in RAV v City of St Paul Minnesota) to reinforce a commit­

ment to liberal 'principle', and ensure that all understand that freedom of speech has the right to podium dance unimpeded. In case you think that this style of right could never happen here, a quick review of the most recent High Court judgements on the issue would seem to indicate other­wise. Despite protestations that the Aus­

tralian 'freedom of political discourse' is not an individualist right comparable to the First Amendment in the States, the High Court7s most recent judgements on this area Andrew Theophanous v The Herald & Weekly Times Limited and Anor, and Thomas Gregory Stephens and Ors v West Aus­tralian Newspapers Limited appeared inspired by the US experience and quoted with ap­proval American po­litical theorists such as Alexander Meikle- john, and tracts of the US Supreme Court's decision in New York Times v Sullivan

Those on the Right of the political spec­trum know that 'free speech' occupies a position of almost unassailable rhetori­cal strength. Fred Nile, National Ac­tion, and the Shoot­ers Party all trumpet the virtues of free­

dom of speech. It is ironic that freedom of speech used to be the darling of the Left: anti-Vietnam demonstrations, the protest marches that birthed the Sydney Gay and Lesbian Mardi Gras, feminists, Aboriginal people and greens all relied (and still do) on a right to free speech in order to voice dissent. Yet there appears to have been a

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substantial recapitulation: many of those who marched in the gay liberation marches of the seventies are now arguing for laws against homophobic expression and, in NSW at least, such legislation has been passed. Surely this amounts to a be­trayal of the political principles that not only justify he Mapplethorpe exhibition of he present, but also served to underpin he marches, parades, protests and dem­onstrations of boh he recent past ?

In order to unravel this apparent con­tradiction it is helpful to review the tra­ditional justifications and limitations of freedom of speech. Broadly speaking liberal theory provides two approaches to justifying freedom of speech.

The first position is hat speech is a good in itself and needs po further justification. This approach is more popular among aoolytes of the US First Amendment than it is among commentators in he Bill of Righted ess Australia. There are two vari­ations on this heme, neither of which make sense. The individualist version ar­gues that as individuals define themselves

through communication we cannot limit speech as to do so would be to stunt he growth of he individual. But just as we refuse to allow peo­ple to define themselves through bashing others, this rationale for free­dom of speech is limited by he liberal constraint of harm to others'. The second variant suggests that as democracy' is constituted through a freedom of its citizens to communicate amongst themselves, (and to heir elected representatives) speech may not be re­stricted. There are clearly tautological problems with boh ver­sions of this aigument. For example, those who argue that freedom of speech is he centrepiece

of democracy, are arguing that 'public par­ticipation in he political process is neces­sary to democracy, as democracy consists of a political process where there is public participation'.

“Arguments for a free market place of ideas could be rephrased as

'survival of the loudest;may the best

financed,most populist win the battle.'”

The second more sensible approach re­jects the idea that speech is good perse, but raher asserts that speech is valuable for its positive effects upon he quest for truth, he achievement of democracy, and he growth of he individual. Underlying

this approach to justifying freedom of speech is a view hat if speech is free from governmental restriction then truth will triumph in 'he market-place of ideas'. With its origins in he writings of Mill and Milton this metaphor for he process of so­cial communication has developed as one of he most persuasive and distinguished ideas in liberal thought, and it underlies boh our adversarial system of justice and our party system of politics.

“ ...periodic sacrifices must be made to reinforce

a commitment to liberal 'principle', and ensure that all understand that

freedom of speech has the right to podium dance

unimpeded”

Australia’s ‘freedom of political dis­course’ is predicated on the idea that un­regulated speech allows voters to pick and choose their political opinions from the ‘market place’ and that this is good for a representative democracy. As Jus­tice McHugh commented in Australia’s seminal free speech case Australian Capital Television Pty Ltd v Common­wealth:

"Only by the spread of information, opinions and arguments can electors make an effective and responsible choice in determining wheher or not hey should vote for a particular candidate or he party which hat person represents."

RestrictionWhat hen constitutes a valid restriction

on speech? The legal position in Australia is not yet dear; it would seem that he freedom in Australia would only protect an inadequately defined category of 'po­litical communications'. In liberal theory it

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is assumed that all speech is good for de­mocracy unless it can be shown to cause 'actual harm', 'mere offence'is insufficient to justify a restriction on speech. Indeed many liberals take the view that if it is of­fensive, then there is all the more reason for affording it protection. This approach is used to bolster the sincerity of their ar­guments; by supporting the right of those they oppose to express themselves, liber­als demonstrate their commitment to 'principle' . It is on this basis that liberals deliberately blind themselves to any dif­ferences between a Mapplethorpe exhibi­tion and racist, sexist, or homophobic vilification. Rather than prededde the is­sue by excluding one category of speech from the operation of the market-place, liberals argue that a better result will be achieved if all are allowed to tussle freely in the competition for the hearts and minds. Such an approach can be passed off as commitment to liberal principle' while conveniently abrogating the need for a moral decision to be made.

“the elevation of freedom of speech to the ethereal

status of a ''political principle' has long been bolstered by martyr-like supporters claiming that the pain inflicted makes our commitment to the liberal cause that much

more sincere”

The liberal justification for freedom of speech depends upon the maintenance of several distinctions. As liberals are concerned with the justification of free­dom of speech rather than with freedom of action it is important to the liberal po­sition that there is a perceived difference between speech and conduct, and that it is only conduct which is regarded as ca­

pable of causing real harm. It is also vi­tal that governmental actions and gov­ernmental inactions are seen to be theoretically distinct. Further, it is nec­essary to believe that the free speech £market-place’ will operate better in the absence of government intervention.

Those who are concerned with justify­ing anti-vilification laws have made the questioning of these underlying assump­tions central to their critique of the lib­eral position on free speech.

and that which is applauded as 'mere of­fence' is politically charged. They argue that it is unlikely that straight white males are able to see vilification of minority groups as anything more than the 'unfor­tunate price we (they) pay for living in a robust, individualist liberal democracy'. However the liberal stance starts to look shaky when the Royal Commission Into Aboriginal Deaths In Custody finds that "within the systemic discrimination that Aboriginal people receive from police, language is one of the forms of violence that has the most impact."

Creating DistinctionsThe questioning of the distinction be­

tween speech and conduct is argued pas­sionately by Catherine MacKinnon in her most recent book Only Words. MacKin­non argues that speech which vilifies women (particularly pornography) is not speech, but an act of subjugating women. This strategy depends on taking that which you intend to ban outside the realm protected by a commitment to free speech. The problem with this approach (as MacKinnon's arguments ironically dem­onstrate) is that the distinction between communicative conduct and speech is an extremely slippery one.The strategy is rendered impotent in Australia, where both the pro­posed Federal bill, and the existing NSW anti­vilification provisions apply to both speech and conduct.

The second set of assumptions which are questioned by advocates of anti-vili­fication laws are, firstly, that govern­ment action is theoretically different to government inaction, and secondly, that democracy is served best through an ab­sence of governmental regulation of speech. In the Australian context where the media is dominated by two or three key players, these liberal assumptions are difficult to maintain. Clearly the re­fusal by the government to regulate speech is just as much a political posi­tion as the decision to regulate. It is also

The liberal distinc­tion between speech and conduct is to make a 'sticks and stones7 as­sumption that words are prima fade incapa­ble of causing harm. Hard-line liberals want to see threats of physical violence before they will agree to a restriction upon speech. Those in favour of anti-vilification laws point out that the decision as to what is le­gitimately banned as causing 'actual harm',

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hard to see that the absence of govern­mental intervention is the best way to ensure a free trade in the market- place of ideas. Advocates of anti-vilification laws argue that racist, homophobic, and sexist speech ought to be prohibited as it undermines the fair operation of the free speech market, or serves to pervert the very reason for free speech: the function­ing of representative democracy. Char­les R. Lawrence III puts the point forcefully:

"[racist] speech does not result from the persuasive power of an idea operating freely in the market. It is a threat, a threat made in the context of a history of lynchings, beatings and economic repri­sals that made good on earlier threats, a threat that silences a potential speaker."

Hence it is argued that only through be­nevolent intervention can we be sure that the market-plaoe functions fairly. Clearly there are parallels between the "hands off liberal position and arguments for eco­nomic rationalism. Arguments for a free market-place of ideas could be rephrased as "survival of the loudest; may the best fi­nanced, most populist win the battle".

“traditionally liberal slogans employed so

effectively twenty-five years ago against laws

which actively discriminated against

minorities are now furthering a

conservative agenda”

Even if these criticisms of the assump­tions which buttress the liberal view of freedom of speech are accepted, liberals

argue that the focus of anti-vilification laws on protecting specific social groups is illegitimate as laws ought to apply equally to all citizens". Unfavourable com­parisons are drawn between anti-vilifica­tion laws and defamation laws, where fire latter are said to apply equally to every­one. Leaving aside that not-so-small point that defamation only applies to those privileged enough to have a reputation, the idea that anti-vilification laws are somehow an illegitimate type of "special treatment" for a particular social group would be laughable (in light of the well documented disadvantages faced by such groups) if it were not for the persuasive politics of such a position. Again it is ironic that traditionally liberal slogans em­ployed so effectively 25 years ago against laws which actively discriminated against minorities are now furthering a conserva­tive agenda, excusing legislative inactivity in file face of persistent inequalities.

"freedom of speech" as an adequate rebut­tal of arguments for anti-vilification laws.

In order to be a true believer in freedom of speech you must accept several ques­tionable assumptions about the role of government action, the nature of commu­nicative process, and the nature of equal­ity. These assumptions must be maintained in the face of the evidence to fiie contrary that mounts every time a government report is released on the is­sue. In any other forum such a stance would be dismissed as clinging to an out­dated and disproven mythology, in liberal circles it"s called commitment to "princi­ple'. The trouble is that those who argue hardest for freedom of speech are rarely paying the price that the maintenance of mythology requires. ■

The elevation of freedom of speech to file ethereal status of a "political princi­ple" has long been bolstered by martyr-like supporters claiming that the pain inflicted makes our com­mitment to the liberal cause that much more sin­cere. In ques­tioning the"principled" na­ture of this posi­tion, this article does not seek to give govern­ments an unre­stricted right to restrict expres­sion, but rather to disarm those who would por­tray the three word epithet

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