Free Speech Not Guaranteed In Australia
We hear it all the time on American TV shows – “the constitutional right to free speech”.
It enables people to say the most outrageous things – such as the Kansas religious group who turn up at military funerals holding up signs saying ‘Thank God for dead soldiers’ and ‘Pray for more dead soldiers’.
Their twisted belief is that God is punishing America for homosexuality by allowing soldiers to be killed in Afghanistan.
A grieving father took the small Westboro Baptist Church to the Supreme Court – the highest court in the United States – to ban them from funerals as a breach of privacy.
The court decided 8 to 1 that the First Amendment to the US Constitution, part of the Bill of Rights enacted in 1789, meant the church had the right to protest even though they inflicted pain on others.
Australian free speech – and its limits – aren’t enshrined in a specific law enacted by visionary politicians in parliament, but in a mix of legal decisions by judges in various cases that came before the courts over the years.
Surprisingly, this has only developed since the 1990s. The High Court has ruled there is an implied freedom of speech under the Australian constitution, but it is not absolute.
Free speech must come from facts not rumours. The intention must be constructive and not to do harm. You cannot incite hatred against others on the basis of culture, race or ethnicity.
There are laws against obscenity and restrictions on obscene publications, and few argue against this as it covers pornography and child abuse. But it can be controversial when applied to matters of art.
Defamation law is meant to protect a person’s good name, but at times can be used to silence critics and opponents. Restaurants have won defamation cases against food writers who gave them a bad review with some courts awarding the restaurant up to $100,000.
Anti-terrorist laws curtail freedom of speech and there are moves for a government appointed body to be set up to regulate the media. Many might say this is rightly so, but it does mean what you say can land you in jail.
Courts are starting to order social media carriers to reveal the authors of defamatory posts so they can face prosecution.
Voltaire is reputed to have said “I disapprove of what you say, but I will defend to the death your right to say it.”
But if you have concerns about how far free speech can go it would be wise to consult a legal expert rather than rely on Voltaire or American TV shows.