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August 18th 2012 print

John Dawson

Free speech and its enemies

John Howard, we were told, was the sworn enemy of free speech. Chris Berg's fine new book fingers the real foes of unfettered debate  


Australia’s senior politicians, judges, and opinion makers have received a book titled: In Defence of Freedom of Speech; From Ancient Greece to Andrew Bolt, by Chris Berg. They should read it to discover what it took to institute freedom of speech, how it evolved through the centuries, and what a valuable and vulnerable right it is.


Berg’s book is scholarly without being scholastic, comprehensive without being exhaustive, and intellectual without being fashionably incoherent. It is an historical odyssey, with heroes and villains and conundrums and conflicts, leading to a climax in the final chapter titled: Threats to Freedom of Speech. The importance of the book resides in the realization that the climax has yet to be resolved. It is a timely read for Australians — be they politicians or new voters, scholars or apprentices, students or retirees — who want to be free to think.

Free speech has always had its lovers and haters, but their reasons have differed. Its 20th Century defenders took their lead from 19th century philosophers such as John Stuart Mill, who is discussed in a chapter titled: The Utilitarian Turn. Mill was a powerful proselytizer of the benefits that flow from freedom of speech, benefits that are even more evident now than in his day. But Mill’s utilitarianism couldn’t provide a philosophic base for an individual right.

There is no way for utilitarianism to establish our most basic right to our own life, and then build on that the right to liberty and free speech. The best it can do is to weigh the pros and cons and calculate that the beneficial effects of a free marketplace of ideas, such as keeping governments honest, outweigh its ill effects, such as offending people, to produce the “greatest happiness for the greatest number” of people in society. But utilitarian benefits and detriments are impossible to define objectively, let alone to calculate credibly for a whole society. In practice it comes down to subjective calculations by governments to achieve subjective goals; and when governments and goals change, freedoms previously permitted are rationalized away in the name of the “public good” or a future utopia.

Marx advocated freedom of the press when he lived in a bourgeois society, but as soon as his followers gained power the presses stopped, never to operate freely again in any Marxist country. In 2007 Clive Hamilton and Sarah Maddison recruited eight more critics of the Howard government to write a paranoid book, Silencing Dissent: How the Australian government is controlling public opinion and stifling debate. Since the election of the Labor government and the blatant assaults on free speech, the silence of these fearless samurai for freedom has been deafening – indeed, some of them have been at the forefront of the assaults.

Like Marxists before them, and medieval censors before them, they are all for freedom of speech provided they win the debate. But when “feebleness of reason”, as one of them calls disagreement, demonstrates “the futility of argument” as he calls losing, “and the failure of politics” leads to governments not doing what he wants, then those that are leading feeble minds astray must be regulated, and those that hurt feeble feelings must be muzzled. So who is to decide who is to speak and who isn’t and who is too feeble to hear what? Those without feebleness of reason, the philosopher kings, who "knew" last century that utopia would be red, and "know" this century that the ideal society will be green, or the planet will be shades of grey!

Freedom of speech is not a utility of society; it is a right of individuals. Individual rights precede the “public good”, be it conceived in medieval or utilitarian or utopian terms. Indeed, for the concept of the “public good” to have any legitimate meaning, it has to refer to the protection of the rights of the individuals who constitute the public. Freedom of speech, says Berg, “is a reflection of a deeper value – individual moral autonomy and human liberty – which underpins a free society". A free society deserving of the name protects individual rights, including the freedom to speak by whatever means we can find or create, and to watch, listen or read what others have to say – or not.

But what about the limits that have to be placed on speech to prevent: incitement, threat, treason, libel, defamation, fraud, kiddy-porn, malpractice, plagiarism, crying fire in a crowded theater, instructing terrorists how to build a bomb, etcetera? Don’t such limits undermine free speech as a right? You start with a ban on incitement to violence; it becomes a ban on “incitement to hatred”, then a ban on offending people, then a ban on saying that white is not black.

Berg’s is not a legal treatise, but he emphasizes a distinction that legislators must remember: the distinction between actions and words. There is a crucial difference between: violent acts and offending words, physical harm and hurt feelings, coercion and persuasion, fatwas and blasphemy, fraud and advertising, lies that get you sacked and embarrassing gossip, words that directly incite violence and words that proselytize an idea or invoke an emotion, be it good or bad.

Fine points of law may be involved in adjudicate the difference, but the basic point was made a long time ago by my mother: “sticks and stones will break your bones but words will never hurt you” – not if you are free to debate them, repudiate them, switch them off or walk away. But to be able to do that you must be guaranteed the right to liberty, including the right to freedom of speech. And as Berg concludes:

“If freedom of speech is to be defended into the twenty-first century, it needs to be more than a motherhood statement. We need to understand where it came from – its centrality to the history of Western Civilisation. And we need to understand what freedom of speech actually means – why it matters, and why it is still our most important human liberty.”

John Dawson is a Melbourne writer. He is the author of  Washout.