McNamara, Lawrence --- "Free Speech as a Limiting Concept: A Common on Gelber, Jones and Free Speech Discourse" [2003] UTSLawRw 5; (2003) 5 University of Technology Sydney Law Review 86
FREE SPEECH AS A LIMITING CONCEPT: A COMMENT ON GELBER, JONES AND FREE SPEECH DISCOURSE
Lawrence McNamara[*]
Introduction
The aim of this brief commentary is to discuss critically the arguments presented by Katharine Gelber and Paul Jones. My intention is not to take issue with specifi c points in their papers (though I will do so in one particular respect),[1] but to explore the general thrust of their arguments in terms of free speech discourse. Loosely speaking, while Gelber and Jones explore what free speech principles might do for their respective areas of inquiry, I am more concerned with the other side of the coin: what might
these areas of inquiry tell us about free speech principles?
I start by summarizing very briefly (and at the great risk of oversimplifying and skewing the authors’ arguments) what I see as the core argument in each paper. This is done with a view to establishing a comparative and critical point from which to consider free speech principles. I then want to identify three ways in which the papers together illuminate some problems with freedom of speech.
I want to make one point: “Free speech”, I want to suggest, is a concept that hinders rather than helps the democratic project that underpins the two papers. To say that our authors are concerned with a concept or idea or law called “free speech” does not do justice to either their arguments or their goals. To draw on a geographical metaphor used by Toni Morrison, my aim is to suggest the possibility of mapping the conceptual terrain differently, even if I am not sure exactly what such a new map would look like.[2]
1. The Papers
Both papers are concerned with the possibilities and the limits of the implied freedom of political communication in the Australian Constitution.
Gelber: Pedestrian Malls and Local Government Powers: Political Speech at Risk.
Gelber has argued that a legally defined limitation on state power does not always or necessarily prevent abuse of that power. This is evident in the ability of local councils to restrict activities in what have become among the most public of gathering places—shopping malls. At its best, the constitutional freedom of political communication relies for its effi cacy on the goodwill of the state, and that is not by any means evident. At its worst, the freedom of political communication does not protect speech— even political speech—because the state may restrict political speech in any way it chooses, provided that such restrictions are “reasonably and appropriately adapted to serve a legitimate end that is compatible with
... representative and responsible government.”[3] In order to ensure that citizens can speak freely in public places, Gelber argues that we need an explicit (and preferably constitutional?) right to free speech.
Jones: The Implied Constitutional Freedom of Political Communication and
Australian Media Policy
The subject matter of Jones’s paper is different, but it is concerned with the same implied constitutional freedom of speech. He argues that the institutional nature of the freedom—it is a limit on the government’s power to restrict political communication among its citizens, rather than an individual right for those citizens to speak—actually enables the government to regulate. Jones argues—I presume on the basis of the power to restrict speech for ends that are reasonably and appropriately adapted to representative government—that the government can regulate the content of what appears in the broadcast media. He suggests, with a turn of phrase that I very much like, that one can “mobilize” the implied freedom: this negative freedom can support a positive right to be informed. The aim, as I understand it, should be to imbue Australian media policy with ethical norms that turn upon the right to know, and that such norms should drive both the behaviour and regulation of the media.
These papers can both be appropriately characterized as concerned with free speech. Moreover, it might even be said that they both aim to promote free speech principles. But to characterize them this way has a
curious result and seems inappropriate, because in free speech terms they have very different arguments:
• Gelber’s argument is that the enhancement of free speech requires the absence of intrusive state regulation.
• Jones’s argument is that the enhancement of free speech requires the
presence of intrusive state regulation.[4]
To suggest that these are papers about free speech is not helpful. To say they are promoting free speech principles is less helpful. The discourse of free speech does not help us understand their projects. It begs questions rather than suggests answers. I would like to argue we should view the papers in terms other than those of free speech.
2. Free Speech Principles: Regulating Speech or Regulating Power?
Although free speech principles suggest on their face that speech should not be regulated, the protection of speech involves the balancing of various interests and the protection is never absolute.[5] Nevertheless, it is said that there are good reasons for maximizing the protection of speech. Freedom of speech is traditionally justified by three rationales: it is an intrinsic right as a form of self-expression; it is an essential element in the pursuit of truth; and it is the sine qua non of a democratic polity.[6] Each of these, it is said, demands that the state not intrude on speech activities.
Of these rationales, democracy (especially) and truth clearly underpin both papers. What I want to suggest is that, instead of saying that these are papers about free speech and are apparently inconsistent, these papers are more usefully understood as being directly about democracy and about truth. Such an approach may help explain why the role of the state in each is very different, even though both are concerned with the enhancement of speech, and may also indicate some shortcomings in using free speech discourse as a lens through which to view the activities of the state. Democratic Projects
Both papers are clearly about enhancing democracy (in one form or another).[7] Jones’s argument works towards protecting speech on the basis that it enhances an institutional form of deliberative democracy. To do so, he argues for the regulation of programme content. As he explains, content regulation is typically characterized in free speech discourse as the
restriction on a right of free speech—content is “the greatest ... taboo”. But Jones’s objective is democratic: it is to facilitate the disclosure of information and opinion in a democratic polity, enabling informed choices. Gelber’s objective seems much more about a form of participatory democracy, or at least participation to the extent that it informs our constitutional and institutional structures. It, too, is classically characterized as the absence of state regulation of speech.[8]
These are projects that are more appropriately characterized as enhancing democracy, rather than enhancing speech. In particular, to argue for the regulation of programme content is not to propose the regulation of speech, but the regulation of power. Similarly, to argue that the state should not restrict political speech in public places is to regulate the relationships of power between the participants in a deliberative democracy.
In this context, I want to ask three questions about the papers and their relationships to free speech principles.
1. THE STATE: BENEVOLENT, BENIGN OR BRUTAL?
What is the role of the state in these proposals? Is it benevolent, benign or brutal? The traditional position in free speech discourse is that the state is neither benign nor benevolent. It is by its very nature inherently restrictive, if not brutally so. The presumption is that the state will seek to restrict speech, and that the constitutional entrenchment of free speech is a protection against state power. In many circumstances this assumption holds up and Gelber’s is an example par excellence of this assumption in action. However, it does not always mean that this will be the case. The state may be able to play a constructive role by regulating who speaks in pedestrian malls to ensure that the inequalities among citizens do not prevail in the struggle to be heard. This, as I see it, is the very rationale underlying Jones’s proposals for content regulation. Albeit in an imperfect form, the political advertising restrictions challenged in Australian Capital Television v Commonwealth were about the same thing.[9]
Free speech principles are premised upon the impossibility of the state being a benevolent actor. The idea of deliberative democracy does not by any means entail the same assumption. Democracy is a better way to understand and defend the regulation of public space and the regulation of public airwaves.[10]
2. WHAT DO WE MEAN BY TRUTH?
What does it mean to say that free speech is concerned with the pursuit of truth? The essence of this is the Enlightenment focus on reason, which
gives us the intrinsic capacity to identify truth. The usual way of extolling the virtues of this rationale is to do what Mill did (except it was novel when he did it) and recite Milton’s Areopagitica:
And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?
But as there are different types of speech, there are different types of truth. There is what might be seen as speech with factual content
(information) and speech with normative or moral/ethical content
(the essence of political discussion). The idea of the right to know is fundamentally concerned with the disclosure of the former. Factual speech is, however, intimately linked with ethical speech. It is, at the very least, the foundation of informed discussion about how we should live. But such ethical questions are less easily resolved on the basis of a pursuit of truth, particularly if one respects and values difference rather than posits the existence of universal normative principles.
Where norms are to be determined in a democracy, there is no necessary reason to always see the state as a dangerous actor. On the contrary, it is the state that can enable participants, who would otherwise be silenced or ignored, to be heard. Once again—be it by the retreat of the state from pedestrian malls or the intrusion of the state into programme content—it is unhelpful to view state intervention as the regulation of speech. The state is, as far as ethical truth or ethical consensus is concerned, an actor with a unique power to facilitate a democracy characterized by ethical deliberation in its regulation of relationships of power. The state may not always do so, but it cannot be presumed it will never do so.[11]
3. WHAT ASSUMPTIONS UNDERPIN FREE SPEECH PRINCIPLES?
There are well established problems with free speech rationales. Schauer has pointed out that they rely on assumptions of equality among the participant speakers—all have an equal ability to speak and to listen—and assumptions of rationality (i.e. “that all of the participants in the deliberation will evaluate with care and sympathy the utterances of others”).[12] The inference is that only if these assumptions are in fact true is it appropriate to prevent the state infringing on rights of speech. It is the assumption of rationality that is of most concern to us at present.
At this particular point in Australian history, there is little evidence of care and sympathy for others. There is little to suggest a desire for any sort of truth—factual or ethical—on the part of the government, the opposition, or many leading media players. In Neville Roach’s words, our government is “giving comfort to prejudice”.[13] There is little willingness on the part of either the state or the community to engage in processes of deliberative democracy that may prompt some defensible ethical standpoints by which one can judge the behaviour of public or private institutions. And this is my principal criticism of free speech discourse: the language of free speech is not sufficiently capable of justifying or advancing such a process.
Free speech discourse is too caught up with the evils of the state. It relies on assumptions which are unrealistic and unachievable. It purports to be value neutral, when in fact it privileges those who have power. This is not to say that freedom of speech does not have a role to play. On the contrary, it most surely does—but it is an instrumental role. It is better to invoke democracy, or truth, or social justice, or human rights, than free speech. The protection of speech is important, but so is the regulation of speech. Free speech discourse contemplates only protection; it cannot adequately comprehend the possible benefits of regulation.
Conclusion
If that is what the papers tell us about free speech, what does free speech tell us about the papers? Like Gelber, I am not convinced that the implied freedom is sufficiently robust to prevent the state restricting speech in public spaces. I am not entirely certain that even an express right would protect such speech as one might want. Conversely, I agree with Jones
(although I am not sure that the legal basis of the freedom has the democratic foundations he suggests)[14] that it would be the implied freedom rather than an express right which would enable content regulation.
The two papers are both important and innovative contributions to the policy and politics of the implied constitutional freedom of communication. But I don’t think that free speech discourse is the most helpful analytical vehicle for considering the protection of speech, the regulation of speech, or the implied freedom of political speech. In short, if there is the possibility of mapping the conceptual terrain differently, it is the regulation of power—not traditional free speech principles—that must become the central focus when considering the role of the state and the role of the law in regulating speech.
* Lecturer, Division of Law, Macquarie University.
[1]I am not persuaded that the implied freedom has the democratic foundations the authors each suggest it does. In particular, I am inclined to think that Jones’s view of Lange v Australian Broasdcasting Corporation (1997) 189 (CLR) 520 is at once both too generous and too unfair to the High Court. Regarding the former, I would argue that Lange rejects a democratic basis of the implied freedom, rather than maintaining a representative sense of
democracy; representative government would appear to be quite different, and especially so in its implications for Jones’s argument. Gelber focuses on the text and structure reasoning in Lange though there seems to be a presumption of some corollary between democratic and representative government. This is significant given what appears to be the democratic basis of the argument that follows. On the second matter, I think Jones is unfair to the Court by overstating the emphasis on government and political matters as the scope of the freedom. While this is textually correct, the judgment in Lange suggests that this could nonetheless encompass a very broad range of subject matter. On this issue, Gelber seems to allow more scope than Jones: [Gelber, text accompanying note 13].
[2]Morrison, T., Playing in the Dark: Whiteness and the Literary Imagination, Picador, New York
[1993], 3: “I want to draw a map, so to speak, of a critical geography and use that map
to open as much space for discovery, intellectual adventure and close exploration as did the original charting of the New World—without the mandate for conquest.” I certainly make no claims to succeed in the manner that Morrison suggests, but it is this degree of conceptual re-thinking that would greatly help analysis of free speech.
[3]Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 561, quoted in Gelber
[text accompanying note 26]. As suggested above (note 1), this test does not necessarily have a great deal to do with democracy.
[4] This is one way to express it. It could also be said that Gelber wants to relax state intervention, while Jones want to increase it. There are any number of possible ways to frame the point, but it is the comparison rather than the precision which is important.
[5] Gelber [text accompanying note 4] points out the wide variety of limits.
[6] See, for example, Tom Campbell, who refers to this as the “classic trio”: “Rationales for Freedom of Communication” in Sadurski, Wojciech and Campbell, (eds), Freedom of Communication, Ashgate/Dartmouth, Aldershot, 1994, 17.
[7] This concept clearly needs a good deal of unpacking, but this is not possible in this forum.
[8] I examine below the possibility of the state regulating to facilitate speech in such contexts, rather than to restrict it.
[9] [1992] HCA 45; (1992) 177 CLR 106.
[10] The choice of words here is obviously deliberate: a democratic rationale can be defended in terms of a collective good rather than in terms of individual values which dominate liberal free speech discourse.
[11] In Frederick Schauer’s words, “There are reasons to believe that free speech principles
[preventing government from restrictively regulating speech] will be good at some times and places, but there are fewer reasons to believe that the necessity of them is atemporal, ahistorical and a universal imperative”: Frederick Schauer, “Free Speech in a World of Private Power” in Campbell and Sadurski, op. cit., 1–16, 12–13.
[12] Schauer, ibid., 6.
[13] Roach made comments to this effect in numerous media reports when he resigned as chair of the Council for Multicultural Australia. See for example, one of Roach’s statements from January 2002: http://old.smh.com.au/news/webdiary/2002/01/25/ FFXSXKUUUWC.html.
[14] See note 1, above.