In Defence of Freedom of Speech – Speech to the Fabian Society, Melbourne 18 November 2024

SPEECH TO THE FABIAN SOCIETY VICTORIAN BRANCH
MELBOURNE 15 NOVEMBER 2024

IN DEFENCE OF FREE SPEECH

Good Evening
Firstly I acknowledge the Wurundjeri people of the Kulin Nations as the traditional owners of the unceded land on which we meet. I respectfully recognise Elders both past and present.

Introduction
Recently an artist here in Melbourne approached me with a problem. He had had a complaint filed with the Australian Human Rights Commission against him by a person who happens to be an employee of a Jewish school in Melbourne. The artist had an exhibition at a small gallery that explored the oppression of the Palestinian people by Israel since 1947.
One of the pieces on display was a tent facing downwards. This, alleges the complainant, is a symbol of Hamas. I have been assisting this artist with another lawyer, both of us pro bono.
Why? Because his right, and that of the Gallery’s to freedom of expression is under threat.
The artist is not the only individual who supports Palestinians to be subjected to aggressive legal manoeuvring by the Zionist lobby.
There are lawyers in Melbourne busy sending off threatening letters to academics, artists, writers and others who are accusing, rightly, Israel of genocide and war crimes.
These actions amount to bullying in many cases. And they are designed to shut down Palestinian support in Australia.
Unfortunately politicians in Victoria like the Premier Jacinta Allan are refusing to stand up against this aggression. She has lamented that Myers will not hold its annual Christmas Window display. The right to protest about genocide in Gaza and now Lebanon by Israel comes second to populism.
This state of affairs is an example of freedom of speech under threat yet again.

What is freedom of speech?
Tonight I want to share with you the need for freedom of speech to be protected because it is a core value of a democratic society. Yet, as I will outline, today we have this insidious hypocrisy where governments, mainstream media organisations, universities and the list goes on, choose what they will tolerate within the realm of freedom of speech.
Let’s start though with a restatement of the importance of freedom of speech.
William O Douglas, one of the giants of the US Supreme Court who sat as a justice from 1939 until 1975 (and who was one of that nation’s most powerful conservationists), was a resolute champion of freedom of speech.
He put the case for free speech, albeit in the context of the First Amendment, this way;
“Free speech has occupied an exalted position because of the high service it has given our society. Its protection is essential to the very existence of a democracy … . It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us … . [Free speech] has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality.”
Justice Douglas wrote this in a 1949 case involving a priest named Terminiello who had given a speech in which he variously attacked communists, Jews, President Roosevelt and a myriad of others. A crowd caused a riot and Chicago’s police charged him under a city law that said, “misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”
As Justice Douglas put it; “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” It can only be curtailed if it is “shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”
Douglas’ reference to freedom of speech being a safeguard is right. And that is what is under attack today. And not from, in the main, what the right calls the ‘woke’ left, but in fact from governments and conservatives.

The Assange Case
One such case in which freedom of speech was under threat, and which has thankfully now come to a conclusion, involves the Australian publisher and journalist Julian Assange. I had a role in the Assange campaign, working in an advisory and leadership capacity in the Australian campaign.
Assange was hunted down by an enraged Washington after he published in 2010, through his WikiLeaks site, reams of materials about US military activities in both Iraq and Afghanistan. This material included the notoriously chilling Collateral Murder video that shows US troops lining up, and gunning down Reuters’ staff on a Baghdad street. In essence the WikiLeaks’ publications opened to the world the difference between US and western rhetoric about it being the force of ‘good’ in the Iraq and Afghanistan wars, and the reality.
Assange was subsequently pursued by Sweden, doing the spade work for the US, and then Washington itself which filed an indictment against Assange in an Eastern Virginia court. That indictment accused Assange of breaching espionage laws and, if he had been found guilty, he would have faced the reality of the rest of his life being spent in a maximum security prison, ‘on the baking plains of Oklahoma’ as former Foreign Minister Bob Carr put it.
The attack on freedom of speech in the Assange case was not only in criminalising publication of the truth about the United States’ role in the wars it started in Iraq and Afghanistan, but in the fact that the US was prepared to use a domestic law to prosecute a citizen of another country who had not published from the US. It is called extra territorial reach and the fact it was happening meant every journalist and publisher in the world was under threat.
In Australia WikiLeaks won a Walkley Award but there were failures on the part of some to support him. The Prime Minister at the time of the WikiLeaks publications, Julia Gillard, was appalling in her approach. She was merely echoing the Washington outrage. Over the years others like journalist Peter Greste, himself captured in Egypt, and some of his colleagues accused Assange of not being a journalist – as if that mattered.
The Assange case tells us that freedom of speech is too often undermined when it suits government or corporate interests. What Assange represented, like Daniel Ellsberg in 1971 when he released the Pentagon Papers, was a direct threat to the secrecy to which the military, security services and their political masters are addicted.
Fortunately, in both cases freedom of speech prevailed, but of course in the case of Assange at a huge personal cost.

Lack of Constitutional Protection in Australia
As we know, shamefully Australians do not enjoy strong human rights protection because of an absence of a charter or bill of rights. For this we can blame successive governments although the great reformist Attorney-General Lionel Murphy had drafted a human rights bill which did not survive the aftermath of November 11, 1975.
We might also blame the generally timid, conservative Anglophile drafters of the Australian Constitution (Alfred Deakin was memorably called a forelock tugger by Paul Keating), who cherry picked elements of the United States’ Constitution, but left on the vine most of the substantive rights contained in it, including freedom of speech.
The best we can get in a constitutional sense is what is called a constitutionally implied freedom of political communication which has been developed out of a series of cases decided by the High Court over the past three decades.
But this is a limited freedom and operates on a case by case basis. It is not a constitutionally entrenched right as the High Court has observed in 2013, noting in a successful challenge by Bob Brown to draconian anti-protest laws in Tasmania, that the “implied freedom operates as a constraint on legislative and executive power. It is a freedom from government action, not a grant of individual rights. The freedom that the Constitution protects is not absolute. The limit on legislative and executive power is not absolute.”


University Protests and Responses
The Gaza conflict has, as we know, led to students at a number of universities around Australia exercising their right to protest. These protests have included erection of tents and encampments. Some of you here might remember the late 1960s and early 1970s anti-Vietnam War protests at institutions like Monash University where sit ins were not unusual. My great friend and colleague Len Hartnett -some of you may know him – participated in these activities. He said there was no threat of expulsion from the University administration.
Compare that to now. The high handed attitude and disregard for freedom of speech shown by institutions such as Melbourne University and Deakin University are cases in point.
They said some students felt afraid and that these encampments were an occupational health and safety hazard. At Melbourne students were threatened with expulsion or suspension. Of course, universities have dressed up their undermining of freedom of speech by lauding the right to protest. But actions speak louder than words.

Israel – the Protected Species
I recounted at the commencement of this speech the story of the artist, the gallery and the complaint about an artwork purportedly representing Hamas.
The response by Israel to the horrific events of October 7th last year have triggered an overdue turning point in attitudes towards Israel. It is a rogue state and it is committing genocide in Gaza, undeniably so.
Many in this country are rightly voicing forthright and strident views about the evil being perpetrated. But the response from governments, media, cultural organisations and the political class who are in the thrall of the powerful Zionist lobby, to those of us who are supporting the rights of Palestinians, who want to see Israeli politicians and military chiefs prosecuted for war crimes, and who are arguing for sanctions on that nation, has been chilling.
While you can say what you like about the actions of the governments of China and Russia (albeit neither is committing genocide), or organisations like Hamas and Hezbollah, criticising Israel’s criminality and depravity in Gaza will have you sanctioned, sacked or the victim of lawfare.
Take the case of pianist Jayson Gillham. His ‘crime’ was to make a factual statement at a Melbourne Symphony Orchestra concert three months ago about the number of media personnel killed by Israel in Gaza. Mr Gilham found his second concert cancelled and the now, thankfully sacked, CEO issuing a grovelling apology to those patrons (and no doubt donors) who were ‘offended’ by this statement.
Apparently art museums, even those that think of themselves as radical, have a policy against the wearing of Palestinian badges.
Sponsors who support Israel are withdrawing funding from arts and cultural organisations that are daring to allow freedom of expression on the Gaza conflict.
And of course we have the notoriously gutless ABC sacking Antoinette Lattouf, reminding journalists not to take sides in the conflict, and cowering in the face of criticism by right wing outlets such as The Australian and politicians. Ms Lattouf was taken of air by the ABC for posting content from the respected NGO, Human Rights Watch, about Gaza. It was posted on her personal Instagram account.
Any organisation that cancels Palestinian advocacy needs to heed the words of Max Kaiser of the Jewish Council of Australia; “To those who would silence even the most basic expressions of humanity: Your actions are not just misguided; they are complicit in genocide.”
Just on this point. There are times when the media cannot remain neutral. And that is when, on a daily basis, men, women and children are being killed, deprived of basic medical care and starved by an occupying force. To stay neutral is to put compliance with policy before humanity. This is the ABC sadly.
But it is not just at the high-profile level this harassment is happening. I have had young lawyers tell me that they have been summonsed by their bosses who have had complaints about something posted or liked on their Linkedin page.

Misinformation Bill
It is ironic that a parliament would consider legislating to combat what it calls ‘misinformation’ because the capacity of politicians to mess with the truth, or to articulate policies that they know to be false promises. However that is where we are with the Albanese government’s Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024.
This legislation is designed, according to Communications Minister Michelle Rowland to enhance free speech. In her second reading speech she said; “The rapid spread of seriously harmful mis- and disinformation poses a significant challenge to the functioning of societies around the world. Democratic countries like Australia rely on the free flow of information to inform public debate, and the integrity, diversity and reliability of information is fundamental to our democratic way of life.”
But who defines “harmful mis-and disinformation”? What does it mean?
The Bill defines misinformation and disinformation “as the dissemination of content on a digital communications platform that, among other criteria, contains information that is reasonably verifiable as false, misleading or deceptive, and is reasonably likely to cause or contribute to serious harm of a specified type, with significant and far-reaching consequences for the Australian community (or a segment thereof) or severe consequences for an individual in Australia.”
This Bill would prevent, or severely curtail, online protests in support of Palestine, or harsh criticism of Israel. On the other hand it is unlikely to stop governments and other political parties making claims, such as that the solution to youth crime is to lock children up and forever increasing periods of time, despite the overwhelming evidence that shows such an approach increases crime in the medium to long term. Or for police to lie about how they are making progress in the ‘war on drugs’ even though this utter nonsense.
Alongside this flawed bill sits the equally dangerous attempt by the Alliance for Journalists Freedom, run by establishment journalists and lawyers, who want to define what a “journalist” is – talk about a return to medieval guilds!
This organisation is run by Peter Greste. His alliance wants to create a category of approved journalists who meet certain standards. They would get protection under the law when police raid them etc Those not in this category would not.
In other words, what Mr Greste and is colleagues are doing is to undermine freedom of speech for anyone they deem not to be a ‘journalist’. This proposal would not have protected Assange and others who publish vitally important material about the underbelly of government.

Freedom of Speech and its Limits
None of this is to say freedom of speech is an absolute right – one without limits. But the limits should be few. The South African Constitutional Court has summarised the international jurisprudence and standards on the limits of freedom of speech;
“Various factors have been identified in international law that justify the curtailment of freedom of expression. These include: (i) the prevailing social and political context; (ii) the status of the speaker in relation to the audience; (iii) the existence of a clear intent to incite; (iv) the content and form of the speech; (v) the extent and reach of the speech; and (vi) the real likelihood and imminence of harm.”
Hate speech, for example, is rightly criminalised because it clearly fits within those curtailment factors. As does speech that demonises transgender people, anyone in the LGBTIQ community or migrants. The authoritarian federal Opposition leader Peter Dutton’s nasty jibe a few years ago about ‘African gangs’ in Melbourne a case in point.
The American scholar Steven Heyman argues that the reason for criminalising certain types of speech is because they undermine the right every person has which is a “right to recognition – that is, a right to be recognized and respected as a free and equal person.”
This is a useful scaffolding for determining how we place limits on freedom of speech that are legitimate.

An Irony
Every day the right-wing media and its political friends fulminate about what they term ‘wokeness’ and mutter inanities such as “we are being censored.” But they are intellectually dishonest – charlatans if you like.
These are the very people and organisations (some churches particularly) that condemn speech which is uncomfortable to them. They want to ban the articulation of critical race theory, stop discussion about transgender issues. They abhor children reading books in which the parents are same sex. In the United States – Douglas is turning in his grave – in some states, Florida for example, fanatical bigoted racist and sexist parents run around taking books off library shelves.
Yet these very same people laud ‘freedom of speech.’ Hypocrisy writ large is an understatement.

Conclusion
Freedom of speech is under threat in Australia as this nation. That is no exaggeration. Public servants sacked for airing dissent publicly. Journalists raided by police. Bans on what schools can teach. Anti-protest laws. Harassment by lobby groups through aggressive litigation of opponents.
In short, to use a phrase from the Cato Institute, a US think tank, we are in a “free speech recession.” Made worse in Australia because we do not have constitutional protection.
Thank you