What Price Free Speech


I’m in the process of writing a response to the Report Of The Independent Inquiry Into Media And Regulation by the Hon R Finkelstein QC (hereinafter referred to as the IIMR). One paragraph jumped right out of the report and smacked me cleanly between the eyes:

“6.76 This debate in the United States bears out Schauer’s argument that the ‘chilling effect’ is less an empirical claim and more a value judgment as to which potential harms are to be preferred.  In the United States, free speech is given primacy among rights, and therefore the potential harm caused by restrictions on speech is thought to outweigh the potential harm caused by speech that is not restricted.  In Australia free speech does not necessarily have the same primacy. For example, in Australia great weight is given to preventing prejudice to a fair trial, so restrictions are placed on what the media can publish about matters that are sub judice. The United States strikes this balance differently.”

There you have it fellow Aussies.  Freedom of speech is not a right, but a privilege which is outweighed by, well, read the report for yourself; I think (as in, I’m expressing an opinion here, just in case any legal mind reading this is stupid enough that I have to bludgeon them with that fact) you’ll find that the weight given to free speech by the Hon R Finkelstein QC is effectively zero.  I struggle to find a single instance in the report where the value of free speech is given greater “weight” than competing considerations.

Here’s a case in point: having read sections 5.92 through 5.98, I wonder if the above paragraph might not be a cause for action on the part of the Hon R Finkelstein QC for defamation (hence my slightly testy aside).  It is a statement that I firmly believe but on the basis of section 5.98 of the IIMR If prosecuted in court I may well find that my opinion is not in fact “honestly held”.  Because the courts, after all, are in a position to know my mind better than I am.

Anyone want to place any wagers on whether or not I seriously considered making such remarks about an individual so much more personally powerful, wealthy and connected than myself?  But that’s not a chilling effect, refer to section 9.2 of the IIMR where The Hon R Finkelstein QC makes no attempt to find countervailing opinion in the same way that he goes to great effort to find in the case of his remarks on the United States’ fairness doctrine.  This prompts me to regard The Hon R Finkelstein as having predetermined the result of his inquiry and tailored his report to reflect that result (opinion again) rather than actually inquiring into much of anything at all.

Well, either the possibility is not a chilling effect (after all, I went ahead and published this article, right?) or the damage done to my freedom of speech is insufficiently serious as to justify any concern on the part of the wealthy and powerful who seek to regulate my speech.  Hopefully my lack of readers will render my fears of prosecution baseless.

In any case, I’m going to continue working on an article which addresses the central struggle embodied by the IIMR; that between the rights of the individual and the power of the collective.

I apologize for all the parenthetical asides in this article; it’s a weakness in my writing style I’m not entirely certain how to eliminate and I’m publishing this article in something of a hurry while I work on a more polished and much longer commentary on the IIMR

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