Freedom of speech and “consequences”

The recent uproar over allegedly “misogynist” comments made by Senator Leyonhjelm in response to Senator Hanson-Young’s implications that men are collectively responsible for the rape-murder of Eurydice Dixon (and all violence perpetrated by any man against any woman) has brought out a familiar slogan: “freedom of speech is not freedom from consequences.”

Many people whom are critical of political correctness and the shaming, ostracism and character-assassination tactics of “Social Justice Warriors” frequently assert that these “SJWs” represent a threat to free speech. SJWs respond by saying that freedom of speech is protection from the government punishing you for your speech, but it isn’t protection from social consequences for your speech.

But this argument is disingenuous at best, and represents a tactical shift in the definition of free speech and freedom generally.

Negative and Positive Liberty
Negative liberty and positive liberty is a distinction rooted in the works of Isaiah Berlin. Berlin is regarded as the founder of the left-liberal tradition, which essentially agrees with classical liberalism on philosophical and methodological issues but believes a mixed economy rather than a pure market economy is necessary to secure freedom. Berlin justified this by making a distinction between two concepts of what liberty means; the first concept, which he called “negative” liberty, says that one is free to do “X” when other people (or organisations made up of other people, including the State) are prohibited from using violence, fraud or coercion against one in retaliation for doing X. The second concept, which he called “positive” liberty, is that one is free to do X not only when free from violent, fraudulent, coercive prohibition and retaliation, but when one is also free of the inability to do X. In short, someone who cannot afford to buy food is not really “free to eat” and someone who is quadriplegic is not really “free to walk.”

Classical liberals have criticised the idea of positive liberty, but that doesn’t mean classical liberals do not care about expanding positive liberty; indeed, classical liberals typically believe in negative liberty because they think it is the best way to widen the scope of positive liberty. What classical liberals object to is the left-liberal propositions that the State must provide a large level of positive liberty, and that positive liberty is a superior concept of liberty to negative liberty, but neither of these disputes means that positive liberty isn’t a valid concern.

Let us apply this to freedom of speech. Legal protection of freedom of speech, such as the First Amendment of the United States Constitution, protects negative liberty of freedom of speech from being infringed upon by the government. Other laws, such as prohibitions against violence and fraud and coercion, protect the negative liberty of freedom of speech from being infringed upon by other individuals, so long as these laws do not contain exceptions for “this other person said something I don’t like and therefore I decided to kill them” defenses.

But it is not invalid to talk about a positive liberty of freedom of speech either. Even if laws are taken out of the equation, when unspecified consequences are enshrined as acceptable responses to controversial ideas, this intimidates people from discussing or analysing these particular ideas. Where economic harm or character assassination is considered an appropriate response to the violation of broad taboos, even if speech is legally free the marketplace of ideas is constrained.

Freedom of speech has always been conjoined with the notion of uninhibited debates over and discussions of ideas which are controversial and even hated. Everyone agrees with the freedom to say things that are considered approved or non-controversial; it is only speech that challenges orthodoxy which needs to be protected. This concern with positive, rather than exclusively negative, freedom of speech has been enshrined in American First Amendment jurisprudence through the concept of the “chilling effect.”

The SJW Hypocrisy
In short, the classical liberal notion of free speech has never been exclusively legalistic, nor has it ever been exclusively governmental; not only is the State forbidden from using violence against you in retaliation for your speech, but so are other individuals. The SJW notion of free speech exclusively as protection from State retaliation is unprecedentedly narrow even in terms of negative liberty.

But it is when discussing the positive liberty aspect of free speech that SJWs show their true hypocrisy.

SJWs subscribe to an ideology with no intellectual link to the liberal tradition, however SJW ideology is intensely familiar with the concept of positive liberties and how cultural norms can sabotage these positive liberties. Arguments such as “women are discouraged from entering STEM” and “women are discouraged from playing video games or participating in ‘nerdy’ hobbies,” are premised on the idea that social norms other than the law can restrict freedom. Let us take the example of someone growing up gay in a fundamentalist Christian community; even if their rights are protected absolutely under the law, this person is clearly situated within a cultural context that restricts their positive liberty to be gay even if their negative liberty is completely protected.

However, the SJW argument that “freedom of speech is not freedom from consequences” works out to an assertion that there is no such thing as a positive liberty to free speech. Indeed, given how they will engage in defamation in order to sabotage the job prospects of someone who transgresses their beliefs, they don’t even believe in the full negative liberty of free speech.

Why is this hypocrisy? Because it is a strategic redefinition of freedom. If someone is going to say they believe in freedom, they must have a unitary concept of what constitutes freedom and they must apply it consistently. For SJWs, freedom to be a woman who plays video games requires a “non-sexist” gaming community. Freedom for a woman to go into a STEM career requires a culture which not only promotes the idea that women can and should go into STEM, but special programs providing scholarships exclusively for women to study STEM, and a complete change in the internal culture of STEM that moves away from notions like “objectivity” and “meritocracy.”

Yet when it comes to freedom of speech, suddenly the idea that cultural norms matter and that these norms can either enable or restrict liberty is completely thrown out the window.

Indeed, the SJW concept of free speech is so narrow that it even manages to be narrower than a purist negative liberty conception of free speech; the government may not be able to use violence or fraud or coercion in retaliation to your speech, but a private individual who is sufficiently outraged or considered sufficiently “oppressed” could get away with defaming or harassing or stalking someone whom is accused of contributing to oppression.

This is tactical. Because SJWs are not inheritors of any liberal tradition, they don’t actually believe in individual freedom (be it positive or negative) as the ultimate goal of the polity. However, they know most people in Anglosphere societies have liberal sympathies; as such, they cannot outwardly say “we don’t think freedom is the ultimate end.” So they disguise themselves and pretend to be inheritors of a left-liberal tradition concerned with how cultural norms can prevent individuals from exercising rights.

But when freedom of speech comes around, cultural norms no longer matter; freedom is merely freedom from State retaliation, and trying to foster cultural norms that stigmatize dissent and enshrine unquestionable orthodoxies is “just more speech.”  

Returning To Liberalism
Of course freedom of speech doesn’t mean people cannot criticise your speech, dislike your speech, or even hate your speech. Nor does freedom of speech allow you to engage in consumer fraud. But this doesn’t make “freedom of speech isn’t freedom from consequences” a profound or meaningful statement. Rather, it is a vacuous truth at best, and a dangerous and deliberate equivocation at worst.

Freedom of speech is not merely protection from the State’s retaliation; it is protection from any person or group thereof (and the State is ultimately just a group of people) using force, fraud or coercion against you in response to your speech. This is the proper negative liberty understanding of freedom of speech; whilst freedom of speech doesn’t mean freedom from any consequences per se, it does mean others may not inflict particular kinds of consequences upon you.

But freedom of speech has always had a positive liberty aspect to it in liberal theory. Like freedom of religion, freedom of speech grew out of challenging orthodoxies. It grew out of dissent. As John Stuart Mill pointed out, it is important as a means for the discovery of truth that ideas be able to compete and viewpoints be able to challenge each other. Viewpoint diversity is a necessity to prevent the stifling of inquiry that inevitably comes with orthodoxy; no idea must be beyond critique. A culture that encourages the persecution and shaming of dissenters is a culture which, irrespective of its laws, does not truly value or understand free speech.

And as both Ayn Rand and Frederich Hayek correctly emphasized, cultural norms matter. One cannot sustain a liberal polity when that polity has embraced illiberal values. If free speech is thought of merely as a legal formality that protects people from the State alone, free speech is devalued and ultimately is set along a path to be extinguished.

Andrew Russell

Andrew Russell

Andrew Russell is an Economist, Objectivist and political commentator. His legal interests include travel, electronic-industrial music, casino gambling and recreational alcoholism.
Andrew Russell

1 Comment on "Freedom of speech and “consequences”"

  1. john bolton | 16/07/2018 at 7:49 pm | Reply

    Freedom of Speech. Constitutional invalidity of Victorian Act. Have finished draft notice to Court and AG. Send to you subject to no public circulation lest it be deemed contempt. Can be circulated privately to garner for suppport. In County Court Thursday.

    IN THE COUNTY COURT OF VICTORIA Court No H10032063

    BETWEEN Blair Cottrell Appellant

    AND Erin Ross Respondent

    NOTICE OF A CONSTITUTIONAL MATTER

    1. The Plaintiff gives notice that this proceeding involves a matter under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 of the Commonwealth.
    Question
    2. Is Section 25 and its associated sections of the Racial and Religious Tolerance Act 2001 (Vic) either in its entirety or in its operation invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

    3. The Facts showing that the matter is one to which section 78B of the Judiciary Act 1903 applies are set out in the document annexed hereto.

    Dated

    To the Registrar

    And to the Defendant.

    Question
    Is Section 25 and its associated sections of the Racial and Religious Tolerance Act 2001 (Vic) either in its entirety or in part or in its operation invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

    Representation
    J.Bolton for the Plaintiff

    In 2001 the Parliament of Victoria enacted the Racial and Religious Tolerance Act 2001 (Vic) (the Act) the purposes of which reads:
    Purposes
    The purposes of this Act are—
    (a) to promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity;
    (b) to provide a means of redress for the victims of racial or religious vilification.
    Section 25 of the Act Creates offences.
    25 Offence of serious religious vilification
    (1) A person (the offender) must not, on the ground of the religious belief or activity of another person or class of persons, intentionally engage in conduct that the offender knows is likely—
    (a) to incite hatred against that other person or class of persons; and
    (b) to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.
    Note
    Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.
    Penalty: In the case of a body corporate, 300 penalty units;
    In any other case, imprisonment for 6 months or 60 penalty units or both.

    (2) A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
    Note
    Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.
    Penalty: In the case of a body corporate, 300 penalty units;
    In any other case, imprisonment for 6 months or 60 penalty units or both.
    (3) For the purposes of subsections (1) and (2), conduct—
    (a) may be constituted by a single occasion or by a number of occasions over a period of time; and
    (b) may occur in or outside Victoria.
    (4) A prosecution for an offence against subsection (1) or (2) must not be commenced without the written consent of the Director of Public Prosecutions.
    26 Incorrect assumption as to race or religious belief or activity
    In determining whether a person has committed an offence against section 24 or 25, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed.

    In any other case, imprisonment for 6 months or 60 penalty units or both.
    Section 3 of the Act defines religious belief and activity:
    religious belief or activity means—
    (a) holding or not holding a lawful religious belief or view;
    (b) engaging in, not engaging in or refusing to engage in a lawful religious activity;

    In the Magistrate’s Court The plaintiff was unrepresented and convicted of 3. INCITE RELIGIOUS CONTEM PT/REVU L/RIDICUL (subject to amendment to include the details of the complaint)
    The plaintiff challenges the validity of certain provisions of the Act, and to that end invokes the test for invalidity stated in Lange v Australian BroadcastingCorporation as explained in McCloy v New South Wales and Brown v Tasmania [2017] HCA 4318 October 2017
    1 with respect to laws which restrict the freedom of communication about matters of politics and government which is implied in the Constitution.
    Background facts
    2 The plaintiff etc…(subject to inclusion of a potentially agreed set of facts)
    3 In the Second Reading Speech to the Bill which became the Act it was said:
    4 (Not iterated here but will be referred to in argument)
    Protests and the Act
    5 There is a long history of political protest in Australia, including protests concerning the building of mosques and the introduction of Islamic ideological issues, in spaces accessible to the public and in the Plaintiffs case a primary means of bringing issues to the attention of the public and politicians is to use “social media broadly” including to broadcast images, of that region, or council area or location of proposed building sought to be protected and which is said to be threatened.
    The Plaintiff asserts he is a political person and has an extensive history of public political activity
    6 Historically, protests have been a means of bringing about political and legislative change on political issues. Onsite protests have been a catalyst for political expression
    7 Protests have taken place in Australia and Victoria in areas that, at some later time, have had Mosques approved or built
    8 Public debate about Islamic ideological issues generally is relevant to both State and federal politics. Public debate about Islamic ideological issues in Victoria has featured prominently in previous State of Victoria and federal campaigns.
    9 Some protests have involved robust political statements which may be described as invective or insulting. Protest activity has not included protesters placing themselves so as to render the building of Mosques impossible. Protestors have not prevented equipment being used; locked themselves to a boom gates or vehicles; occupied tree houses; blocked forest roads nor locked themselves onto various devices whilst sitting in trees in order to prevent themselves being removed from the area.
    10
    The second reading speech says of the Victorian Bill that “its impact on freedom of expression is extremely limited” and “It is not intended target trivial comment, impolite remarks or legitimate discussion”
    The Act is said by section 3 to be interested only in lawful religious activity. religious belief or activity means—
    (a) holding or not holding a lawful religious belief or view;
    (b) engaging in, not engaging in or refusing to engage in a lawful religious activity;

    Section 26 of the act states that
    In determining whether a person has committed an offence against section 24 or 25, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed.

    Section 26 seems to be said to give meaning to the Section with which the Plaintiff was charged and convicted. S25D(2) of the Act that says:

    Section 25(2) A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

    Uncertainty created by these terms is an important aspect of the operation and effect of the provisions of the Act. (Brown v Tasmania)
    What is correct belief about a religion?
    What if the belief is “correct” but is unlawful?
    What is an assumption?
    What does the group “Muslim” mean
    ‘insult and invective’

    Who decides this? A case by case analysis? Herein lies a problem for validity according to majority in Brown’s case

    A note about the Coleman case “ a law restricting political communication that is aimed at promoting civility is not compatible with the constitutionally prescribed system of representative and responsible government and is thus precluded by the freedom of political communication”

    The terms, operation and effect of the RRV Act
    Police in Victoria have statutory Powers of arrest and removal which may be utilized with respect to suspected breaches of Religious Villification Offences under the Act
    DISCUSSION OF VICTORIAN POLICE POWERS HERE WE WILL LOOK AT DIRECTIONS FOR OFFENCES THAT MAY BE ORDINARILY BE GIVEN IN ORDER TO STOP A SUSPECTED BREACH OF THE ACT by POLITICAL PROTEST IN ORDER TO SHOW instanter POLICE DECISIONS WILL INTERFERE WITH POLITICAL SPEECH. (Brown v Tasmania) to be referred to.
    11 The powers of arrest and removal are exercisable only if the police officer “reasonably believes” that it is necessary to do so for specified purposes, which include ensuring the person’s attendance at court; the preservation of public order; preventing the continuation or repetition of an offence; or the safety and welfare of the person or members of the public
    12 In order to answer the question whether a statute impermissibly burdens the implied freedom of political communication, it is necessary to consider in some detail the operation and effect of the statute . That consideration assumes particular importance in this matter.
    13 An obvious feature of the RRV Act is that it reasonably applies only to political activists/protesters. While sections 7 and 8 have specific protections for public and artistic productions and S25D does not, the practical and historical application of similar matters “paedophilia and obscenities” in the arts for instance means s 25D (even without the section 15 protections) will be used for protestors rather than main stream political commentary.
    14 RRV Act Section 15
    15 (1) A person does not contravene section 7 or 8 if the person establishes that the person’s conduct was engaged in reasonably and in good faith—
    16 (a) in the performance, exhibition or distribution of an artistic work; or
    17 (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for—
    18 (i) any genuine academic, artistic, religious or scientific purpose; or
    19 (ii) any purpose that is in the public interest; or
    20 (c) in making or publishing a fair and accurate report of any event or matter of public interest.
    21 S. 11(2) inserted by No. 25/2006 s. 9.
    22 (2) For the purpose of subsection (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.
    23 12 Exceptions—private conduct
    24 s. 12
    25 (1) A person does not contravene section 7 or 8 if the person establishes that the person engaged in the conduct in circumstances that may reasonably be taken to indicate that the parties to the conduct desire it to be heard or seen only by themselves.
    26 (2) Subsection (1) does not apply in relation to conduct in any circumstances in which the parties to the conduct ought reasonably to expect that it may be heard or seen by someone else.

    Without similar protections that occur in sections 11 and 12 Section 25 operates in a discriminatory manner against political protesters.
    It impacts on political discourse.
    While the Act may have a legitimate objective. (This may be conceded depending on advice of Senior Counsel}
    The Burden of free political discourse is too great.
    There are other legal remedies already in existence – Incitement to violence laws exist. Early parts of the Act SS 7 and 8 provide adequate non criminal incentives.
    The Criminalising of political discussion by defining it as “criminal incitement” but merely to think “bad thoughts” is an un-Constitutional burden.

    27 Another feature is that the definition in the RRV Act refers expressly to matters about which protesters may be voicing opinions. Those matters and opinions receive no helpful mention in the Act, the operative provisions of which are addressed to the conduct of protesters with respect to a group regardless of the difficulty of defining the group.
    S.3. Definitions.
    religious belief or activity means—
    (a) holding or not holding a lawful religious belief or view;
    (b) engaging in, not engaging in or refusing to engage in a lawful religious activity;

    In the instant case WHAT LAWFUL RELIGIOUS BELIEF OR VIEW WAS BEING PROTECTED?

    143,000 results for a YouTube search on 25th June 2018 “islamist beheading”

    28 What group is the group?
    29 The execution of apostates is sanctioned by all the five dominant streams of Islamic jurisprudence, namely the Hanafi (Sunni), Shafi’i (Sunni), Maliki (Sunni), Hanbali (Sunni) and Ja’fari (Shi’a) legal codes, under which the State may impose the death penalty as a mandatory punishment (‘hudud’) against adult male converts from Islam (‘irtidad’).52 For adult women, death is proscribed by three of the five Islamic schools.
    30 (A.Zimmerman. The Western Australian Jurist Vol 4 P 85)

    31 It may be accepted that political activists will seek to conduct protests concerning Islamic operations, and agencies and authorities which grant approvals and permissions, in the vicinity of those operations and the offices of the agencies.. Protests of this kind are generally known as “onsite protests”. It is important, however, to recognise that protests will take different forms and some will occur much closer to operations than others.
    32 The principal problem, practically speaking, for both police officers exercising general powers of arrest and disbursement with respect to the RRV Act and protesters is that it will often not be possible to determine the boundaries of The group or what is meant by “serious contempt for, or revulsion or severe ridicule”
    33 That problem arises because the terms ” serious contempt for, or revulsion or severe ridicule” is inapt for use with respect to political discourse.
    34 “serious ridicule”
    35 dictionary.cambridge.org/dictionary/english/ridiculeCached
    36 ridicule definition: 1. unkind words or actions that make someone or something look stupid: 2. to laugh at someone in an unkind way:
    37 So “serious ridicule” is being seriously unkind!”
    38 It is a criminal offence to incite serious unkindness. Seriously!?

    39 The definitions do not provide guidance because it is not possible to distinguish between those political acts which are purportedly made criminal offences and those political acts which are protected by the Constitution and which are repeatedly said by the High Court to include invective and offence.
    40 The question simply becomes whether a protestor or person is doing something the local police office thinks should be stopped.
    This real problem which will impact on protestors and enforcers not knowing what is unlawful –
    That this will heavily discourage and impact on the exercise of political discourse is additionally recognised in the Act by the requirement that prosecutions must be authorised by the DPP.
    Effectively no person will know until after the DPP has made a decision whether the political acts were deemed unlawful, worthy of prosecution, worthy of preventing at the time, worthy of engaging general police powers to move on or arrest. Only one out of 7 Judges of the High Court was against this invalidating point of view in Browns case.
    41 In Browns case … “There can be little doubt that the determination of whether a protester is in an area of forestry land has proved difficult for police officers exercising powers under the Protesters Act. The circumstances surrounding the arrest of Dr Brown are revealing. … The Commissioner explained that the decision was based upon advice received from the Tasmanian Director of Public Prosecutions, who had observed that “it was difficult for police officers to determine whether a person was in a business access area or on business premises”. and,
    42 “The point to be made is not that prosecutions of charges made under the Protesters Act are unlikely to succeed, if they do proceed. It is that the difficulty associated with identifying the area to which the Protesters Act applies in a given circumstance is likely to result in errors being made except in the clearest of cases. The result will be that some lawful protests will be prevented or discontinued and protesters will be deterred from further protesting. They will be deterred because it will come to be appreciated, if it is not already, that there is a real likelihood that if they are present on land in the vicinity of forest operations they may be subjected to a direction to leave the area and all the effects which flow from such a direction even if there is no basis in law for the direction because the area is not forestry land or a business access area in relation to that land.” and,
    43 “The vagueness of the terms “business premises” and “business access area” is also likely to work against a protester in seeking a remedy by means of judicial review of a direction made to leave the area where they were protesting. It is one thing for lawyers advising the government to determine whether it can be proved that a protester was in an area to which the Protesters Act applied. It is another for protesters to have a direction ruled unlawful in time to return to continue their protest. The result will be that protests will be stifled when they should not be.”, and,
    44 “The foregoing observations reflect experience of the practical operation of the Protesters Act in relation to forestry land. That the Protesters Act may operate effectively to stifle political communication which it is not the purpose of the Act to stifle is not merely a function of the vagaries of the application of the concepts employed by the legislation to “facts on the ground”; it is a consequence of the design of the Act in its deployment of a possibly mistaken, albeit reasonable, belief of a police officer as the mechanism by which it operates. Protests may be effectively terminated in circumstances where it is not necessary that the protester has, in truth, contravened s 6(1), (2) or (3) of the Protesters Act, where it is not necessary to establish that any offence has been committed by the protester, and where judicial review of the mechanism whereby such a result is brought about is not practically possible before the protest is terminated.
    45 In this regard, the directions contemplated by s 11 may be based on a mistaken, albeit reasonable, belief on the part of a police officer that a person has committed, is committing or is about to commit, inter alia, a contravention of s 6(1), (2) or (3) on or in relation to business premises or a business access area. A protester who, in truth, has not committed, is not committing and is not about to commit a contravention of s 6(1), (2) or (3) on or in relation to business premises or a business access area may be directed to leave an area which is not, in truth, business premises or a business access area. In this way, protesters who are not disposed to risk breaching the peace in order to test in court the reasonableness of the police officer’s possibly mistaken belief may be moved on by the police, and their protest thereby terminated.”
    46 “likely to have significant deterrent effects on protesters. Their effects will extend to protesters undertaking protest activities of a kind and in a place which would not affect forest operations and whose presence would not be excluded by the FMA. Their effects will extend beyond individual protesters to entire groups,”
    47 Protesters of this kind will be deterred from being present in the vicinity of forest operations for fear that they may be subject to a direction to leave, with all the consequences which flow from such a direction. They will be deterred from protesting even though the direction may be based upon an erroneous view of where they are situated.
    48 The combined effect of the provisions referred to above is immediate. It can bring the protest of an entire group of persons to a halt and its effect will extend over time. Protesters will be deterred from returning to areas around forest operations for days and even months. During this time the operations about which they seek to protest will continue but their voices will not be heard.”
    49 “there is nothing to suggest that mistakes will not continue to be made. That circumstance will operate as a significant deterrent. That will occur as a practical matter whether or not a prosecution for an offence is pursued to a successful conclusion and without any occasion for the determination by a court of whether or not the operation of provisions infringes the implied freedom in the circumstances of the case”.
    Continuing with direct recital of the majority in Brown’s case
    A burden on the freedom?
    50 It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression. The enquiries posed by Lange are the indispensable means by which a legislative measure which is apt to impede the free flow of political communications may be justified. The first enquiry is whether the freedom is in fact burdened.
    51 It is difficult to dispute that the plaintiff in this matter may be taken to have been communicating about matters relating to politics or government. The Victorian State RRV Act burdens the freedom.
    52 Where a statute is said to impermissibly burden the freedom, the first enquiry is whether the statute in fact burdens the freedom . The extent of the burden is a matter which falls to be considered in relation to the assessments required by the second limb of Lange . The first enquiry requires consideration as to how the statute affects the freedom generally . It is not answered by reference to the operation of the statute in individual cases, although such evidence may provide useful examples of the statute’s practical effect, and therefore of the burden the statute may have on the freedom . This Court has said more than once that the freedom spoken of is not a personal right or freedom. The freedom is better understood as affecting communication on the subjects of politics and government more generally and as effecting a restriction on legislative power which burdens communications on those subjects .
    53 The circumstances relating to the plaintiff show clearly how the freedom is burdened. The plaintiff’s communications to others with respect to the political issue were silenced.
    54 The other aspect of the Protesters Act to be considered is its discriminatory effect, namely, that it imposes a burden on the freedom solely in relation to protesters. No decision of this Court holds that a law effecting a discriminatory burden is, for that reason alone, invalid and the plaintiffs did not contend for such an approach. Such an approach would seem to be at odds with the questions posed by Lange and, in particular, the second, which involves an enquiry as to whether the burden can be justified.
    55 In Australian Capital Television Pty Ltd v The Commonwealth (“ACTV”), Mason CJ held that some provisions of the statute in question were discriminatory because they were weighted in favour of established political parties and against new and independent candidates. His Honour did not say that they were invalid simply because they effected a discriminatory burden. Rather, his Honour held them not to be “justified or legitimate” after considering, and rejecting, arguments about whether the regulatory regime introduced a “level playing field” and whether equality in sharing free broadcasting time was unattainable.
    56 A law effecting a discriminatory burden on the freedom does not necessarily effect a greater burden on the freedom. It may effect a discriminatory burden but impose only a slight, or a less than substantial, burden on the freedom. McCloy provides an example of such a law. The provisions of the statute there in question included provisions prohibiting the making or accepting of a political donation by a “prohibited donor”, where the definition of “prohibited donor” singled out certain groups, such as property developers. The provisions were not considered to effect a substantial burden on the freedom because their effect was indirect, given that their direct effect was to enhance freedom of political speech generally by levelling the playing field, and there were many other available methods of communicating on matters of politics and government, including influencing politicians to a point of view .
    57 A discriminatory law does, however, serve to identify the group targeted by a law and informs the assessment of the restrictions imposed by the law upon the ability of those persons to communicate on matters of politics and government. It is this assessment which must be undertaken in order to answer the question whether the freedom is burdened. In the present case the answer is clear. Protesters will be deterred from voicing their protests with respect to forest operations. The freedom is burdened.
    The purpose of the RRV Act
    58 Once it is concluded that the freedom is burdened by a statute, the true purpose of that statute assumes importance with respect to each of the enquiries which follow, which are directed to whether the burden is justified. The identification of that purpose is to be arrived at by the ordinary processes of construction .
    59 The plaintiff submits that the purpose and practical operation of 25D and associated provisions of the RRVAct is to “prevent protests that … relate to ‘political, ideological, religious ideology, religious belief or activity, social, cultural or economic issues’, which are the key issues to which electors will have regard when choosing their representatives” and to “prevent, hinder or obstruct, or be about to prevent, hinder or obstruct, business activities at the site where private or governmental entities carry on business”.
    60 For its part, Victoria might state that the purpose of the RRVAct Tasmania says that the purpose of the Protesters Act is as stated in the Act:
    61 The Parliament of Victoria therefore enacts as follows:
    62 PART 1—PRELIMINARY
    63 1 Purposes
    64 s. 1
    65 The purposes of this Act are—
    66 (a) to promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity;
    67 S. 1(b) amended by No. 16/2010 s. 197(a).
    68 (b) to provide a means of redress for the victims of racial or religious vilification.
    69
    70 With the objects of the Act ” connected with the advantage of having a settled and orderly economic environment in which to conduct business.
    71 The plaintiffs’ submissions elide the purpose of the Protesters Act with its operation and effect. In a later submission they recognise that it is the Act’s operation in respect of onsite environmental protests which will stultify the effectiveness of protests. It is the measures for which the Act provides, and in particular the powers given to police, which affect the ability of persons to protest. But this is not to deny that those measures are directed to the protections it seeks to achieve.
    72 Although protesters are targeted and discriminated against and special measures are directed towards them, it may be seen that the legislation was enacted against a background where protesters, or at least some of them, were perceived to be those persons, or groups, who would cause damage or disrupt economic activities during protests of particular kinds. It is important, however, to be clear about the purpose of the Protesters Act. It is not correctly stated simply as the protection of the interests of business just as it is not the prevention of protests. It is the protection of businesses and their operations, here forest operations, from damage and disruption from protesters who are engaged in particular kinds of protests. This is the mischief to which the statute is directed .
    Compatibility
    73
    74 the manner of achieving the statute’s purpose, as well as the purpose itself, must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
    75 2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
    3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
    A slight burden?
    76
    77 As has been seen, the Protesters Act may operate to stifle political communication on the mistaken, albeit reasonable, belief of a police officer as to the effect of protest activity … and where that question may never be determined by a court. … it is in consequence of this overreach of means over ends that the Protesters Act operates more widely than its purpose requires….
    78 It may be accepted to be logical to approach the burden which a statute has on the freedom by reference to what protesters could do were it not for the statute.
    79 The exercise of general powers activated by a suspected breach of the RRVAct will likely result in persons wrongly being stopped from political protest, moved on and their protests being brought to an end, and them being deterred from further protests in the foreseeable future. In its practical operation the RRVAact indirectly burdens the freedom but it does so to a significant extent. Generally speaking, the sufficiency of the justification required for such a burden should be thought to require some correspondence with the extent of that burden .
    A compelling justification?
    80 The plaintiff submits that because the RRVAct Protesters Act operates by reference to political and ideological and religious protests, it is directed to the content of these political communications and a “compelling justification” is therefore required. As in Brown’s case This submission implies that measures which burden the freedom in this way will require a higher level of justification.
    81 In ACTV, Mason CJ expressed the view that laws which “target ideas or information” may require “a compelling justification”. His Honour was speaking of a law specifically directed at, and which prohibited, the broadcasting of matters relating to public affairs and political discourse. It effected a direct burden on the freedom. His Honour did not use the words “content-based” with respect to the laws in question. In US jurisprudence concerning the First Amendment that term may refer to a law targeting speech based on its communicative content . Under the doctrine of strict scrutiny such a law is regarded as “presumptively unconstitutional” because it poses “the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information” .
    82 In the context of the implied freedom and the test in Lange, what Mason CJ said in ACTV might be thought to require more by way of justification only at the balancing stage of proportionality analysis rather than justification operating presumptively at the outset of the analysis under the second limb. The only basis given in Lange for the invalidation of a law at the threshold, which is to say before testing for proportionality, is when a law does not have a legitimate purpose, in other words, where the purpose of the law is not compatible with the maintenance of the scheme of representative and responsible government for which the Constitution provides .
    83 It should in any event be observed that neither the terms of the Protesters Act nor its purpose seeks to affect the content of the opinion which a protester may seek to voice with respect to forest operations. “Protesters” are defined by reference to those opinions, perhaps unnecessarily, but the Act takes it no further. Its terms, in their operation and effect, are directed to the conduct of protesters.
    84 The Plaintiff submits that the RRVAct is substantially different. It does seek to affect the content of opinion that is expressed by political speech. The offending section 25D and associated sections specifically refer to the defendant’s belief and the accuracy of it.
    85 26 Incorrect assumption as to race or religious belief or activity
    86 s. 26
    87 In determining whether a person has committed an offence against section 24 or 25, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed.

    Who will ever determine what an “assumption” is and what the “incorrectness” is. Even His Honour Justice Edelman. the dissenting minority Judge in Brown’s whose general dissent was that Courts must interprete. Will have great difficulty interpreting these words without evidence everytime. Leaving the dilemma of uncertainty and reluctance to express a politico religious view.

    This Victorian RRV Act actually does define what is not allowed to be protested about. That aspect was lacking and a weakness in the Brown case where “neither the terms of the Protesters Act nor its purpose seeks to affect the content of the opinion which a protester may seek to voice with respect to forest operations. “Protesters” are defined by reference to those opinions, perhaps unnecessarily, but the Act takes it no further.”

    This Victorian RRV Act actually does define what is not allowed to be protested about. It is a worse offender of free political discourse than the Protest Act.

    88 The RRVAct specifically refers to “beliefs” as part of the essential nature of the Statute.
    A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
    89 It is a necessary conclusion that the belief of the political expression is different to that which is being protected by criminalisation of the political act or speech or the defendant would be in the class of protected persons he is said to be vilifying.
    S25(2) of the RRV Act makes crimininal
    …conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of …
    In the instant case the class “muslims” is between 1.2 and 1.6 billion people of such a wide variety that many claim theirs is the only Islam (Zimmerman above). The class alleged is another example of complete uncertainty. On these facts, which Muslims are offended by the incitement to further ridicule beheading?
    It criminalises the incitement of “thoughts”
    “Serious contempt”
    dictionary.cambridge.org/dictionary/english/contempt
    contempt definition: 1. a strong feeling of disliking and having no respect for someone or something:

    So “serious contempt” is a “seriously strong feeling!”
    “revulsion”
    dictionary.cambridge.org/dictionary/english/revulsionCached
    revulsion definition: a strong, often sudden, feeling that something is extremely unpleasant:

    “serious ridicule”
    dictionary.cambridge.org/dictionary/english/ridiculeCached
    ridicule definition: 1. unkind words or actions that make someone or something look stupid: 2. to laugh at someone in an unkind way:
    So “serious ridicule” is being seriously unkind!”
    It is a criminal offence to incite serious unkindness. Seriously!?
    Religious vilification laws are purportedly designed to promote greater tolerance and harmony among the community religious groups. Although these laws aim to develop a more tolerant ‘multicultural’ society, their underpinnings ultimately erode freedom of speech, a cardinal tenet of every truly democratic society.
    Indeed, such laws might become a permanent invitation for religious bigots and extremists to silence any criticism of their beliefs, by claiming that they, rather than their radical beliefs, have been attacked. Ironically, the more a religious belief warrants debate and discussion, the more protection such belief appears to receive from this sort of legislation.
    It is virtually inconceivable that a prosecution under the RRV Act, even though it defines “religious belief” as “holding or not holding a lawful religious belief or view” would be authorised by the DPP to protect atheists or anti-theists. Or perhaps in today’s world even Christians.
    Who would ever be prosecuted in Australia for being “seriously unkind” to Christians or Atheists?
    McCloy and proportionality testing
    90 Although the purpose of the Protesters Act meets the requirement of compatibility, the measures it adopts to achieve that purpose effect a burden on the freedom and must be further justified . In McCloy, it was suggested that the question posed in Lange whether a measure is reasonably appropriate and adapted, or proportionate, to its purpose might be approached by reference to certain criteria of proportionality. If the criteria were not met, and the answer is in the negative, it would follow that the burden imposed on the freedom is not justified. The means could not be said to meet the requirement of compatibility. The freedom would operate to restrict the exercise of legislative power.
    91 … Lange, correctly understood, requires that any effective burden on the freedom must be justified. The first enquiry posed by Lange is whether a burden, or restriction, is imposed on the freedom at all. If it is, the process of justification commences with the question of compatibility of purpose, as mentioned earlier in these reasons , and it continues with enquiries as to proportionality.
    92 …an argument that only particular degrees of burden warrant justification is inconsistent with Lange.
    93 There can be little doubt that the availability of other measures which are just as practicable to achieve a statute’s purpose, but which are less restrictive of the freedom, may be decisive of invalidity . In such a case it could hardly be said that the measure which is more restrictive of the freedom is necessary.
    94
    Connection to purpose
    95 …the only purpose of these provisions must be to bring a protest to an end and deter further protests,…
    96 It is the prospect that they might offend against that provision which will deter protesters … The question whether … provisions … which burden the freedom … can be justified falls to be determined by whether they can be said to be necessary.
    Are the measures reasonably necessary?
    97 The question whether a law can be said to be reasonably necessary, in the sense in which that term applies in the context of the freedom, does not involve a free-ranging enquiry as to whether the legislature should have made different policy choices. It involves determining whether there are alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom . Where such alternative measures are obvious and their practicability compelling it may be difficult for those arguing for the validity of the legislation to justify the legislative choice as necessary, as previously explained .
    98 The Protesters Act operates more widely than its purpose requires. It is principally directed to preventing protesters being present within ill-defined areas in the vicinity of forest operations or access points to those areas, whereas its purpose is similar to that of the FMA.
    So too Section 25D and associated provisions operate more widely than the purpose of the RRV Act purposes require.
    Section 25D Act seeks to adopt measures which, in their operation and effect in the context of that statute, will have substantial deterrent effects. To an extent those effects are achieved by extending the areas of its operation, creating further consequences for non-compliance with the objectives of the Act including special offences and heavy penalties. More importantly they are achieved by the uncertainty which surrounds the areas within which the Act applies.
    99 The concern of the Court is the extent to which the Protesters Act restricts protests more generally. It is likely to deter protest of all kinds and that is too high a cost to the freedom given the limited purpose of the Protesters Act.
    US doctrines and Lange
    100 These reasons do not invoke the void-for-vagueness doctrine which is part of US constitutional jurisprudence . The plaintiffs make no claim to invalidity on the basis of such a doctrine. Their claim for invalidity is that the provisions of the Protesters Act burden the freedom and cannot be justified by reference to what was held in Lange and further explained in McCloy.
    101 Lange requires that a legislative measure which effects any burden on the freedom be assessed not only for its purpose, but for its operation and effect . The ultimate question, whether a legislative measure can be justified as reasonably appropriate and adapted, or proportionate, cannot be answered without determining its operation and effect. The enquiry as to its effect on the freedom generally is necessarily one about its operation and practical effect . Whilst the freedom is not an individual right, the extent of the burden on the freedom is usually ascertained by reference to the effect upon the ability of persons to communicate on the matters the subject of the freedom in various ways, for example by giving political donations which might meet the costs of political communication or, as here, by protesting. It is not to the point that a court might resolve the bounds of the physical area to which the Protesters Act applies in a given case, a question of mixed fact and law. As earlier explained, at this point a burden has already been effected, the protest quelled and future protests deterred.
    Such further or other arguments as may be advised to the Plaintiff by Counsel.
    102
    Conclusion and orders sought
    103 The measures adopted by the Religious and Racial Vilification Act (Vic) 2001 which makes criminal and penalises breaches effects a significant burden on the freedom of political communication. That burden has not been justified. The means adopted cannot be considered as compatible, in the sense described in Lange .
    Question
    Is Section 25 and its associated sections of the Racial and Religious Tolerance Act 2001 (Vic) either in its entirety or in its operation invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?
    Answer: They are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.
    The defendant should pay the plaintiffs’ costs.

Leave a comment

Your email address will not be published.


*