What does our constitution say about freedom of speech?
Professor Adrienne Stone discusses the differences between the Australian and US constitutions on freedom of speech and why asserting a right to free speech doesn’t make it true
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Freedom of speech is among the most widely protected of constitutional rights, but the nature of this responsibility is very often complex, and it varies from constitution to constitution. Freedom of political, academic and even personal expression is further complicated in this current ‘post-fact’ world.
Adrienne Stone is Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School, University of Melbourne. She researches in the areas of constitutional law and constitutional theory, with particular attention to freedom of expression.
Adrienne Stone took some time out to Zoom chat about her work with Dr Andi Horvath.
So Adrienne, when you meet someone at a barbecue, how do you describe what you do?
I say that I teach at Melbourne Law School, usually. Then they say, what do you teach? Then I say, constitutional law and they say oh [laughs] and that stops the conversation. But if I want the conversation to keep going, I say my academic interests are in freedom of speech because everyone has an opinion about that.
The constitution is something that we associate with the US of A but with Australia, it’s sort of not so prominent.
I think that’s right. In fact, I think there are relatively few places where the constitution occupies quite the place in popular culture that it does in the United States but in Australia, it’s well to remember that we actually have one of the older constitutions of the world. It was drafted over the 1890s and came into effect in 1901.
It has been interpreted since then by the High Court of Australia and that has produced a very long and really interesting body of law that all lawyers need to have training in as part of their law degree.
But surely a constitution that was formulated in the 19th century is different to the values, beliefs and ideologies we have today?
It certainly is and there are some parts of the Australian Constitution that are really quite arresting reading now. In particular, there’s two sections that reflect very outdated ideas about race and those two sections are now largely unused but it’s somewhat worrying that they remain there.
In other aspects, however, our constitution has served us very well and it has, for example, established - it provides one of the important foundations for the very robust form of democracy that we have in Australia and of which I think we can be in world terms, fairly proud. So the constitution has a little bit of a Jekyll and Hyde quality.
Does a constitution and along with it, the freedom of expression reflect our values and beliefs and therefore what we say and what we can do?
Well, does it reflect our values and beliefs? That’s a difficult question and one on which people will disagree and there is a disagreement in Australia, for example, about which the - the extent to which the Australian Constitution does and should reflect our beliefs. That is seen most vividly in two questions that are around constitutional discourse.
One is the constitutional recognition of Indigenous peoples and the other is the republic movement. Both of those two movements, I think, are aiming at shifting the Australian Constitution so that it better represents the values of a really modern and pleural Australia.
You also asked me about freedom of speech. All democratic constitutions, including ours, contain some protection of freedom of speech. It’s a really central democratic value and so that’s not surprising. Our constitution does it in a very unusual way. Unlike most constitutions, it does not have a provision that says something like there shall be freedom of speech or everyone has the right to freedom of expression. Our constitution simply says that the two houses of parliament shall be directly chosen by the people. They’re the best words in the Australian Constitution. Directly chosen by the people.
That has formed the basis of a very interesting body of law which has developed something that is a lot like a right to freedom of speech because the High Court has said, not at all unreasonably, that if we’re serious about having a parliament that’s directly chosen by the people, we ought to be able to be free to discuss political matters amongst ourselves and it’s developed therefore something called the freedom of political communication.
What are the boundaries of freedom of expression? I’m thinking of the more recent events in America of both sedition and insurrection where obviously it’s great to be able to have free debate and speech but it seems as though freedom of speech has turned into, you don’t agree with me, I hate you, therefore I’m going to act in violent ways. So where does freedom of expression stop in terms of speech or actions and the right to believe?
Well that’s the question. That’s one of the enduringly interesting questions. I said at the beginning of my remarks, when you tell people you work on free speech, everyone has got an opinion on that. Everybody cares about it and everyone has an opinion on how it’s playing out around them.
It’s something that’s not just a value of our polity, it’s often a personal value for people but the most difficult and enduringly interesting set of questions are exactly those about where the limits are. So that there are some agreed limits. Most people think, for example, that your right to freedom of speech doesn’t, as the American Justice Oliver Wendell Holmes famously said, give you the right to shout fire in a theatre and cause a panic when there is no fire. Falsely shout fire in a theatre and cause panic.
But it does allow you to do other things. The question that in fact scholars and political theorists [unclear] always asking is where the limits are. Most people would think that incitement to insurrection in circumstances where that’s likely to be acted upon especially imminently, as was the case in January 6, is outside the realm of freedom of speech.
What’s an example of boundaries?
So I think that it’s generally agreed that incitement to unlawful action - although we would view - we would call that speech; it’s not covered by the freedom of speech. At least in circumstances where it's likely that someone might act upon that incitement. So if you address an unruly mob and tell them to go and storm the capital, that may - that, I think, is widely regarded as not within the right of freedom of speech because it’s inciting unlawful action.
That’s probably one of the clearest ones and ironically, in this time, one of the ones that’s most topical.
Adrienne, democracy only seems to work if it’s an informed democracy. So does freedom of expression, can that derail it in some ways? Or does it actually enhance it?
That is really at the centre of a lot of thinking about freedom of speech. If you think about the time in which we first began to think about freedom of speech of constitutional democracies, which is around the middle of the last century, the way in which we classically might exercise our freedom of speech, our freedom of democratic speech, might be through protesting on the street or through the media. The legacy media, we now call it.
Of course, now - and in those circumstances, freedom of speech operated very differently than it does now in the age of social media when there is a much greater risk of the spread - the widespread dissemination of false material. In those kinds of circumstances, I do think that if we conceive of freedom of speech as just the sort of unruly freedom to speak whenever you want and to say whatever you want, then it certainly can undermine democracy.
There’s no necessary connection between freedom of speech and democracy. What I would say is, everyone agrees we need some freedom of speech but just not too much. The line between the two, drawing that, that’s the hard part.
You use the term political communication. Now, media use communication in a way that it’s supposedly holding power to account. Is there parallels between media communication, political communication and even commercial communication which aims to shift their power in the market?
Right, so I think you’ve asked a really important question. Political communication is widely agreed to be absolutely at the core of freedom of speech. Now, that’s particularly true in Australia where we understand it more or less to be co-extensive with the constitutional protected freedom of speech but even in other places where protection of freedom of speech is wider, just about everyone agrees that political communication is right at the core. The most important stuff in freedom of speech.
That’s because we need to communicate in order to have the capacity to hold our leaders to account and to figure out when we should change them, right? That’s the central connection between democracy and freedom of speech.
Political speech is central and core to freedom of speech but the question of what is and isn’t political is actually quite difficult. So, for example, how do we regard some forms of commercial advertising? They might look like political communication but are they really actually being put out into the marketplace as a way of advancing someone’s commercial interests? Are we so concerned to protect someone’s commercial interests as we are to protect our own political interests? Is there a dividing line between the two? What do we think when, say, a tobacco company engages in a debate around the regulation of tobacco?
We ought to understand that they’re really engaging in some senses in commercial - in speech that is aimed at their own personal self-interest but on the other hand, it is part of our political debate. These are the kinds of questions that scholars of freedom of speech have had to face and they’re never easy, which is why it’s such an enduringly difficult and interesting area.
I think the main thing to think about is, we need to always come back and think, why do we have freedom of speech? If we think it’s there principally to support our democratic government, then rather than just recognising that some act of speech is protected because we call it speech, we need to think about what its relationship to democracy is.
There are some forms of speech, particularly commercial advertising, that I think have only a very limited connection to democratic government.
How does defamation law help shape the freedom of expression?
Well, the prospect of an action in defamation is of course a great chill on our freedom of speech. So - and I know that journalists are very well aware of this, that it’s important that I know journalists spend a lot of their time trying to make sure that what they report is not going to lead to action against them and the effort that they have to spend doing that, I think, is a burden on our freedom of speech.
The question is whether it’s an inappropriate burden and the response to this in the Australian context but not just in the Australian context has been to say, well look, in the case where defamation action is brought because of something that is said within the realm of political speech. So for example, a defamation action that is brought by a sitting member of Parliament. In those circumstances, the barriers to action should be higher. That is, it’s harder and it should be harder to establish that you’ve been defamed when you are a political figure, than in other circumstances and that was a key development in our law in the early 1990s.
There are often two sides to an argument but they’re often not equal. How does that impact on the freedom of expression?
Well it’s a criticism that is made of some understandings of freedom of expression. I mentioned Oliver Wendell Holmes, I think, once already and he said something that sums up one view of freedom of speech when he said, the best test of the truth of an idea is the power it has to have itself accepted in the market.
So his view was, we should have as open and vigorous a discussion as possible with all sides presented because that’s our best, our best chance, to get the truth to come out.
I think that there are all kinds of circumstances when we say, well we just don’t think that that’s true and there’s a certain truth to it in some circumstances but there are other circumstances in which it’s not and one is where there is a persistent group of people in the community who are propagating a view which is false. Which it’s not contested - or it might be contested but it’s not contestable and it is false.
The marketplace of ideas conception of freedom of speech, that conception associated with Oliver Wendell Holmes, tends to give every side of an argument at least some credibility and I think that’s a problem when we have really important public issues like climate change in which there isn’t actually something to be said for both sides of the argument. In pretending that there is, distracts us from having some of the more important questions within, say, policy about climate change, that we need to have.
Yeah, that’s really interesting and quite a difficult one because there are often, sometimes, paradigm shifts in say, in the world of science where the side that hasn’t been really represented, all of a sudden shifts in terms of its saliency, I suppose.
Yeah, I think we need to be very careful about taking the view that there are positions that are so wholly unacceptable that they don’t receive the protection of freedom of speech. Very, very careful but saying that we - say for example, allow people to put views about climate change or views about not getting vaccinated or views about - strange views about COVID, for example, saying that they’re protected by freedom of speech doesn’t necessarily mean that the idea is accorded any respect.
We ought to understand that sometimes we are allowing those things to be said, not because they’re worthy, not because they contribute to the public debate, but just because the act of suppressing speech is a bit dangerous and open to misuse.
Professor Adrienne Stone, you work at a university. Is academic freedom different to public freedom of speech?
Yes, I think it is and I’m really glad you asked me that [laughs], actually. I have a book out that’s co-authored with Carolyn Evans who is the Vice Chancellor of Griffith University, which is called, Open Minds, Academic Freedom and Freedom of Speech.
The central contention of the book is that academic freedom is a very important value in universities but not to be confused with freedom of speech. It is a freedom. Academic freedom is a freedom to - of academic enquiry, some of which will be - will take place through speech but some of which is conducted in other ways. Think of scientific experiments or archaeological digs. These are part of your academic freedom but not freedom of speech.
So in one sense, it’s broader and in another sense, it’s narrower. In this sense, that I think what academic freedom confers, among other things, is a freedom to discuss your research, your field of expertise and that that right ought to be very, very strongly protected. Even more strongly protected than freedom - your general freedom of speech rights in the university because they’re central to the university performing its mission and that is advancing knowledge through teaching and research.
So academic freedom is a broader concept in some ways, a narrower concept in other ways but most importantly, within the sphere of the university, I think it is an even more important, a paramount value.
Most of the time, freedom of speech and academic freedom work in concert to make - and if we have broad rights of freedom of speech in the university, that makes our intellectual environment all the more interesting and robust and it improve our research lives as well but I think there is sometimes a confusion between the two and that can be a risk to academic freedom because I think that academic freedom is a stronger - is deserving of stronger protection than freedom of speech.
I’ve always thought the professor should profess. After all, you guys have had your heads buried in a particular area in a scholarly manner. It only makes sense that you should share all that stuff with us.
That’s one of the nice things about talking on a podcast with you, Andi, is I get to talk about those things that normally I’m just muttering to myself about in a professorial manner.
What sort of misconceptions have you seen in your area of study?
Sometimes when I talk to people about freedom of speech, they think that there is a settled idea about what freedom of speech is and they’ll ask me, well what is the position with respect to this? Now, I can’t think of any area of political thought that is more contested than freedom of speech. So there isn’t a correct answer. And I wish people would understand that.
In particular, I wish that people would stop using freedom of speech as sort of conversation ending assertion that they’re entitled to say whatever they like and anyone who objects isn’t committed to freedom of speech.
The best understandings of freedom of speech, the understandings that have been held by any serious thinker, any serious judge, who has had to implement the principles always recognise that freedom of speech operates over a limited field and the task of determining the boundaries is the hard bit but merely asserting a right to freedom of speech doesn’t make it true.
Adrienne, what surprised you in your field or what sort of major changes or pivotal points have been exciting to see?
So in my field, one of the really interesting things has been - I think there are two interesting things I want to draw attention to. One is that understandings of freedom of speech have for a very long time been dominated by the law and theory of the first amendment to the constitution of the United States.
That’s with good reason. That’s the oldest and most richly elaborated constitutional provision. That’s produced a lot of really interesting literature but there is an increasing awareness that it is in fact an exceptional view not shared by most of the rest of the world and that there are alternative understandings of freedom of speech that are available to us.
I think that that’s a really important term from the intellectual dominance of American conceptions towards conceptions of freedom of speech that come from other places and have a different shape. That take more seriously, for example, the harm caused by speech. That recognise the importance of the equal capacity to engage in freedom of speech to which the first amendment is largely blind.
That’s one thing and the great challenge for free speech theory at the moment is of course posed by the digital economy. We now speak to each other in radically different ways and free speech theory is only very slowly catching up.
Adrienne, what led you into this area of law? What attracted you or inspired you?
Well, my first job after law school was working for a judge of the High Court. Wonderful job and actually at a wonderful time when the High Court was just engaged in developing its early cases on freedom of political communication and I had the chance to see them argued and to work on them for the judge. That attracted my interest.
Then not long afterwards, I found myself with the opportunity to study at Columbia Law School in the United States and slightly unsure about what I should specialise in, I thought, well gosh, I’m in the United States, they have this thing called the first amendment and I’d learnt a little bit about free speech already, I’ll do that.
The rest, I guess, is the history of my career. Like a lot of people, it’s sort of a little bit of a product of my biography. I guess I would say that I very often write a piece on freedom of speech or something and I think, that’s the last one I’m doing. I’m really going to focus on other things entirely now. I’ve written so much about freedom of speech; I couldn’t possibly have anything left to say but it’s never true. It always reels me back in because free speech problems present themselves in such new and interesting ways all the time and it’s pretty much always at the centre of our public life. The questions of where the limits are on freedom of speech and what freedom of speech is there for.
What do you like to use as examples to inspire your students in this area of law?
Actually, I find students don’t need much inspiration here. They’re really, really interested. It’s a joy to teach freedom of speech. For some reason, they find it more intrinsically interesting than say, intergovernmental relations. In fact, when I teach freedom of speech, the greater challenge is to keep the level of conversation in the classroom getting too hot with too many ideas and too many opinions and find a way for us to really engage in a kind of considered way. So it’s just a treat to teach freedom of speech.
I guess because it kind of allows the public to participate in the political process other than voting?
Right, I mean, it’s sort of the essential handmaiden of voting. You couldn’t really meaningfully vote without the right to participate in public discourse and figure out who you’re going to vote for. So I think I said earlier in this interview that for a lot of people, freedom of speech is personal. It is. They personally value it but also, a lot of people have had the experience of being victimised by the speech of others and they - in their lives, experienced the harm that speech can cause. So you get both views when you talk to people about freedom of speech. They both see its value and also understand its costs.
Out of curiosity, when did constitutions start to evolve in cultures? Like going back in time?
So it depends a little bit what you mean by constitution. One understanding of constitution is it’s just the fundamental set of rules on which all legal systems depend. Those rules which determine which are the other rules that are valid? How you go about making your laws and who gets to make them and how the institutions are arranged.
Now, if that is what you mean by constitutions, then all societies have had them pretty much for a long, long time, right? Any complex society has a set of rules but the idea that you might have a document called the constitution, there is a more modern idea that there is a moment of - a constitutional moment where the society constitutes itself and the people come together and they lay down an agreement by which they will live. Very often, that’s recorded in a written document called the constitution or sometimes you - particularly in early times, you’d see declarations like the Declarations of the Rights of Man or the Declaration of Independence.
That’s really a product of the French and American Revolutions but it remained really an exceptional form of governance until the second half of the 20th century and you had a great post world war wave of democratisation that brought with it a wave of constitutionalisation that gathered further pace after the fall of the Berlin Wall in the early 1990s.
We saw over that whole period, increases in democracy, constitutions, constitutionalisation and constitutional values until really, the last 10 years where we’ve seen that challenged by creeping authoritarianism.
What’s the future of constitutions?
I wish I knew, Andi. I think this is a very troubling moment. When we - I said to you that one of the early forms of constitutionalism as we know it today of course sprung from the American Revolution and that has been this very powerful and enduring constitutional democracy and we just saw the President make a lunge for a power of a dictator.
That’s a position that’s almost unthinkable and yet we saw it play out very vividly and that, I think, ought to remind us that those of us who benefit from stable democratic constitutional orders - you know, we get huge benefits from them because they establish a system on which we all participate and which we can use to reconcile - to figure out how to live together, those systems are fragile and that they ought to be vigilantly protected and even the greatest of them turns out to be badly shaken.
Next time we hear the US constitution quoted, what would you like Australians to think about?
Well I think they should think about going to a bookshop and spending about $2 on a copy of the Australian Constitution and having a little read.
I think that’s sound advice.
I would say though, you need actually to do a little bit more than just read the constitution, read some articles and things about it because it’s not easy to understand on its own terms but there’s quite a lot of writing out there about the constitution, written by colleagues of mine in the academy that is accessible to interested lay persons. I think we would all be better off if Australians understood a little bit more about their own constitution.
Professor Adrienne Stone, thank you.
Thank you to Adrienne Stone, Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School, University of Melbourne. And thanks to Dr Andi Horvath.
Eavesdrop on Experts - stories of inspiration and insights - was made possible by the University of Melbourne. This episode was recorded on February 4, 2021. You’ll find a full transcript on the Pursuit website. Production, audio engineering and editing by me, Chris Hatzis. Co-production - Silvi Vann-Wall and Dr Andi Horvath. Eavesdrop on Experts is licensed under Creative Commons, Copyright 2021, The University of Melbourne. If you enjoyed this episode, review us on Apple Podcasts and check out the rest of the Eavesdrop episodes in our archive. I’m Chris Hatzis. Join us again next time for another Eavesdrop on Experts.
“All democratic constitutions, including ours, contain some protection of freedom of speech. It’s a really central democratic value and so that’s not surprising,” says Adrienne Stone, Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School, University of Melbourne.
“Understandings of freedom of speech have for a very long time been dominated by the law and theory of the first amendment to the constitution of the United States,” Professor Stone says.
But the Australian constitution addresses freedom of speech in a unique way.
“Unlike most constitutions, it doesn’t have a provision that says there shall be freedom of speech, or everyone has the right to freedom of expression,” Professor Stone says.
“Our constitution simply says that the two houses of parliament shall be directly chosen by the people, and that has formed the basis of a very interesting body of law, a lot like a right to freedom of speech.
“The High Court has said, not at all unreasonably, that if we’re serious about having a parliament that’s directly chosen by the people, we ought to be able to be free to discuss political matters amongst ourselves and it’s developed something called the freedom of political communication.”
“Any serious thinker, any serious judge, who has had to implement the principles always recognises that freedom of speech operates over a limited field and the task of determining the boundaries is the hard bit. Merely asserting a right to freedom of speech doesn’t make it true.”
Professor Stone points out that many people think that there is a settled idea about what freedom of speech is. “But I can’t think of any area of political thought that is more contested than freedom of speech, so there isn’t a correct answer,” she says.
“We need to be very careful about taking the view that there are positions that are so wholly unacceptable that they don’t receive the protection of freedom of speech.
“But saying that we allow people to put out views about climate change, not getting vaccinated or strange views about COVID, for example, by saying that they’re protected by freedom of speech doesn’t necessarily mean that the idea is accorded any respect.”
Episode recorded: February 4, 2021.
Interviewer: Dr Andi Horvath.
Producer, audio engineer, editor: Chris Hatzis.
Co-producers: Silvi Vann-Wall and Dr Andi Horvath.
Banner: Getty Images
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