The myth of free speech absolutism
Last week, a Louisiana judge ordered Biden administration officials not to email, phone or otherwise contact social media companies about content moderation. But wait, isn’t this an infringement of the officials’ First Amendment right to free speech? Actually, the judge did invoke the First Amendment in his decision. The case had been brought by Republican attorneys-general arguing that the Biden administration’s efforts to crack down on misinformation constituted ‘the most egregious violations of the First Amendment in the history of the United States of America’. And the judge, a Trump appointee, agreed, comparing the US government to Orwell’s Ministry of Truth. There had been ‘a massive effort,’ he wrote, ‘to suppress speech based on its content’.
The First Amendment has been popping up a lot in US cases. Late last month, the US Supreme Court held that a Colorado website designer could refuse to build a site for a gay couple named Stewart and Mike thanks to the designer’s First Amendment rights. The decision sets a hugely significant precedent, but it wasn’t unanimous. In her withering dissent, Justice Sonia Sotomayor wrote, ‘Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.’ The curious postscript, revealed by good if belated journalism, was that there was in fact no gay couple who had sought the website designer’s services. ‘Stewart and Mike’ were a fiction. The decision purportedly in support of free speech was based on a fabricated claim.
Free speech is more slippery than a slip-n-slide. The concept seems simple. The authors of US democracy thought it so important that they enshrined it in the First Amendment of their Constitution. In reality, however, it’s tricky. The right to free speech needs to be balanced against other rights and obligations, such as the right to privacy, the right not to be defamed, and prohibitions on illegal speech, such as live-streaming a massacre. In Australia, the situation is even trickier because free speech is barely protected under the law, with the exception of the implied freedom of political communication that the High Court has inferred from the Constitution. That’s the same implied freedom Pauline Hanson is invoking to defend herself against Mehreen Faruqi’s defamation action, by arguing that section 18C of the Racial Discrimination Act – making it unlawful to offend, insult, humiliate or intimidate someone because of their race or ethnicity – is unconstitutional.
In Australia, the legal and regulatory mechanisms to protect free speech, and to give guidance about what speech is unacceptable, are inadequate and inconsistent. Platform policies are worse. The result is a public sphere that’s a mess. ‘GOODBYE,’ tweeted Sam Neill on July 3. ‘My friends, I’m just going to walk quietly away ... I am not happy with what’s happened at Twitter & I’m not happy to be in a place that is so angry & divisive.’ This followed Stan Grant’s retreat from public life following sustained online attacks. Cleaning up the mess requires a delicate combination of high-level principles coupled with more granular responses, as the CMT recently argued in a submission to UNESCO. The solution also ought to involve a more coherent professional standards scheme for journalists that also encompasses content on digital platforms. Otherwise, the bellowers and bullies will continue to drive out people with genuinely original and valuable contributions.
Sacha Molitorisz, Senior Lecturer - UTS Law
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