Freedom of Speech

[lederhosen]

This is not a political rant (at least, not primarily). This is a rant about ignorant people who think 'free speech' is some sort of magical Get Out Of Jail Free incantation. Make no mistake, I think free speech is a wonderful thing, but that also means I don't like seeing it eroded by people who want to abuse it.

(Oh, and thanks to lonecat, a rather amusing story involving some of these issues...)

In no particular order, some common misconceptions:

US law applies everywhere. For some reason, even people who *don't* live in the US often seem to be under the impression that they are guaranteed freedom of speech by the First Amendment. What does
your Constitution say... if you even have one?

If it involves speech, it's protected. Every nation on earth, including the USA, restricts certain forms of speech. Defamation (libel and slander) is the biggest exception; also, things like 'hate speech' laws are enforced in many countries, even when it's not clear that they are consistent with free-speech laws in the same jurisdiction.

If it's true, it's not legally defamatory. Under US law that *is* the case, but in other places - including Australia and the UK - a true statement may still be held to be defamatory. (IIRC, truth is only accepted as a defense if you can also show that you're acting in the public interest rather than maliciously, but I won't swear to that.)

The only law I need to consider is the law where I live. In Gutnick vs. Dow Jones, the High Court of Australia ruled that material written in the US, published on US-based servers, may be 'published' at the point where it is downloaded - making it subject to Australian law. A rather expensive decision for Dow Jones.

(As Kirby notes in point 66, this judgement is a reminder that defamation law *really* needs rethinking to take the Internet into account. But in the meantime, that's the law.)

Free speech means I can say my piece on any forum I like. You have the right to speak your mind, but nobody else is obliged to lend you a megaphone. If you can't convince anybody else your viewpoint is worth publishing, you can pay for it to be published yourself. A website is cheap, these days.

Free speech means I can say my piece to anybody I like/in any fashion I like. Once people have indicated that they don't want to hear what you have to say, pestering them further isn't free speech, it's harassment (particularly if the form of expression is obnoxious). If you disagree with this one, let me know; I'll give you a ring in the wee hours of the morning, and keep calling back until you change your mind ;-) You have the right to speak; nobody else is obliged to listen.

If you criticise what I've said, you're denying me free speech. Possibly the stupidest of the lot. Free speech means free speech for *other* people, too. It's surprising how often this one still comes up.

Comments

[djfiggy.livejournal.com]

Canada is a "hate-speech law" country. I think it hasn't gone as badly as some thought it would (I heard something about the UK looking at the same kind of laws, and people like Rowan Atkinson vocally hoping it won't lead to their stand-up comedy as being considered hateful against religions--that didn't happen in Canada it seems). But I'm not a person who studies this issue all the time, so you probably shouldn't treat me as an authority about it.

[terrycloth.livejournal.com]

The 'you published it in the US, but it's visible here' ruling (and others of its sort) really piss me off. It makes it impossible to comply with the law, except by accident. Whoever made that ruling deserves to be locked up, and possibly eaten by wolverines.

[lederhosen.livejournal.com]

To clarify, since I misrepresented the ruling slightly: the court actually ruled that it was published in Australia, at the point where it took a readable form (my "published on US-based servers", while an accurate representation of *my* view, misrepresented the court's interpretation of things).

That's not *entirely* absurd. If I write a book in the US, get it published there, and then I transmit the text to Australia for a second printing there, then that should count as publishing in Australia as well. Otherwise, I can pretty much ignore Australian defamation laws just by running off a few copies in the US before printing here.

I agree that the end-result is atrocious, but I'm not sure how far the court can be blamed for it. Kirby's comment on point 66 suggests an attitude of "we realise this is problematic, and somebody should change this law, but it's not our place to do so". Which is ironic, considering how often Kirby's been accused of judicial activism...

[terrycloth.livejournal.com]

It seems to me that if you make that argument, you also have to say that the publisher is the person who owns the computer on which the work 'took readable form'. Otherwise you could entrap foreign publishers by stealing a copy of one of their books that'd be illegal in your country, and running off a bunch of copies to distribute.

It's a strained interpretation, so I can't really buy the 'I don't believe in judicial activism' angle.

Using this as a precedent, it's illegal to say anything insulting to the government of China (or promoting any religion) or the religion of Islam on the net, because it'd be illegal in China or Iran respectively.

[lederhosen.livejournal.com]

It seems to me that if you make that argument, you also have to say that the publisher is the person who owns the computer on which the work 'took readable form'. Otherwise you could entrap foreign publishers by stealing a copy of one of their books that'd be illegal in your country, and running off a bunch of copies to distribute.

Yeah, that's about the point at which the parallel breaks down for me too. There is a difference between making material available on a US server, even if you're aware that somebody in Australia will read it, and deliberately disseminating it in Australia.

What I'm not sure of is whether existing law in Australia allows judges to discriminate based on that distinction; they're *not* free to invent their own criteria, however reasonable they might be.

Using this as a precedent, it's illegal to say anything insulting to the government of China (or promoting any religion) or the religion of Islam on the net, because it'd be illegal in China or Iran respectively.

That doesn't really follow, because this ruling is based on specifics of Australian defamation law, which is (I'm presuming) vastly different from Chinese or Iranian; Australian precedents aren't binding or even significantly persuasive there.

Of course, it's quite within China's power (or indeed any nation's) to declare that any such material *is* illegal, regardless of where it's created & hosted; whether other governments choose to recognise or cooperate with such a law is up to them.

As for Iran - well, Salman Rushdie was sentenced to death in absentia back in 1989, for blasphemy and apostasy, because he wrote a book that - AFAIK - wasn't even available in Iran. They don't need any Australian precedents or net-specific oddities to make such laws.

[sarin-girl.livejournal.com]

You have the right to speak; nobody else is obliged to listen.

I love that.. I must use it more often in my daily conversations...

[ex-cerebrate131.livejournal.com]

Ooh! Ooh! You missed No prior restraint means 'no consequences'.

[lederhosen.livejournal.com]

Drat. I meant to put that in, but I got distracted; it's partially covered by the "if you criticise what I've said" bit.

[mdrnprometheus.livejournal.com]

but in other places - including Australia and the UK - a true statement may still be held to be defamatory

I do not understand how this practice is justified, moral, or good in any way. Kindly explain.

[lederhosen.livejournal.com]

I *think* the argument behind it is something like this: just because somebody richly deserves it doesn't mean you're allowed to punch him in the face - you can only do that in defense of yourself or another - and by the same token, just because somebody richly deserves to be labelled a (whatever) (by virtue of it being true) doesn't mean you're allowed to do so, unless it serves the public good - e.g. by protecting others against it. There may also be an element of "protect the Crown by preventing people from saying bad stuff about it, even if true" left over from the Middle Ages.

But I mentioned this one as a statement of fact, not one of approval; I much prefer the US rules on this particular point.

UK law

[ex-cerebrate131.livejournal.com]

I was wondering about that myself, as I'd always understood truth to be an absolute defence. My lawgoogling seems to confirm that:

It is a complete defence to an action for defamation to prove that the defamatory imputation is substantially true. Justification has to be used with great care.

When relying on the defence of justification the burden of proof is on the defendant to prove that the allegations made are true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely than not to be true. It can often be difficult to obtain sufficient admissible evidence to persuade a jury that the statement is true.

An unsuccessful defence of justification is likely to increase the level of any damages awarded.

There is, however, an exception to this in the case of past criminal convictions:

A defendant cannot rely on the defence of justification in relation to the publication of the details of spent convictions - as defined by the Rehabilitation of Offenders Act 1974 - if the claimant can show that the publisher acted 'maliciously'.

which might be what lederhosen is referring to.

Extra note

[ex-cerebrate131.livejournal.com]

The defences of fair comment and qualified privilege will fail if the claimant can prove that the defendant was motivated by malice when publishing the allegations. Express malice has been defined as a dominant desire to injure the person who is defamed. Absence of an honest belief in the defamatory allegations is generally conclusive evidence of express malice.

Not, however, the defence of justification (truth).

Re: UK law

[lederhosen.livejournal.com]

The key word there might be 'action': A judicial proceeding whose purpose is to obtain relief at the hands of a court.

In M-W, the initiating of a proceeding in a court of justice by which one demands or enforces one's right; also : the proceeding itself.

Wikipedia: Civil action or lawsuit. Also Wikipedia: Torts: In the common law, a tort is a civil wrong for which the law provides a remedy... There is some overlap between tort law and criminal law - some acts may at once constitute both a tort and a crime - and many crimes may be viewed as particularly egregious torts. A cause of action in tort can also be distinguished from a criminal prosecution which may arise from the alleged violation of a criminal statute.

IANAL, and the phrase 'criminal action' certainly does see some use, but from the above it looks as if unqualified 'action' is usually used to mean a civil case.

From the Catholic Encyclopaedia, emphasis mine:

The truth of a charge is always a justification and a complete answer to a civil proceeding for libel. In criminal proceedings it is the general rule that it must be shown in addition that the publication was for the public benefit and for justifiable ends. This has been the law in almost all of the United States for many years, and in Great Britain since 1843 (6 and 7 Victoria, c. 96). (Before 1843, the British rule was "the greater the truth, the greater the libel", as Googling on that phrase will show).

My suspicion is that your source (a href="http://www.yourrights.org.uk/your-rights/chapters/the-right-of-free-expression/defamation---libel-and-slander/defences.shtml">this, I take it?) has become tangled in a civil/criminal distinction. But I'm not certain of my ground; I've run into a wide range of claims trying to check this.

One L.L.B. claims that only in a few jurisdictions within the British tradition is truth alone an insufficient defense. A number of journalists - Australian example and UK/Canada example affirm that truth isn't a defense, but it's unclear whether they're talking in a theoretical or practical sense; the latter may actually be a case of "truth isn't a defense because we can't prove our allegations to a sufficiently stringent standard".

Short of authoritative sources, I'm going to modify what I said previously to "Don't assume that truth is a defence."

Bad link

[lederhosen.livejournal.com]

Sorry, UK/Canada example here.

Re: UK law

[ex-cerebrate131.livejournal.com]

(Given my usual media position, I'm going to go for a more thorough check.)

Unfortunately, it seems that the British e-government is too cheap to hire typists, so only legislation from post-1988 is available on-line. (The Defamation Act 1999 only amends the 1952 Act in non-for-the-purposes-of-this-discussion-relevant ways.) Thus, I am afraid there will now be a delay of a couple of days while my local library obtains for me a copy of the Defamation Act 1952.

Re: UK law

[lederhosen.livejournal.com]

Thanks, I appreciate the effort. Will be v. interested to find out what the law *actually* says.

[bunny-hugger.livejournal.com]

Note that the idea of "portraying in a false light" has been used (in the U.S.) to win libel suits in cases where the published details were technically true.

[terrycloth.livejournal.com]

The suit they describe sounds awfully like portrayal in a TRUE light getting them in trouble.

[ambitious-wench.livejournal.com]

I became aware of the limits of free speech on AOL. In that context, you are limited in what you can say by contractual agreement. You will note that I am not on AOL any more.

The ONLY place you could use profanity and vulgarity was on the ACLU section--as well as put forth your tinfoil-hat and government conspiracy notions if you so chose.

They still limited speech to exclude libel, slander, and the posting of personal information of others.

I have to grin at the idea that while I have the right to free speech, I don't have the right to make someone agree or even listen to me. That works both ways, and I deeply appreciate the technical ability to shut off rantings devoid of any value.

Sometimes the signal to noise ratio is just too great to waste time searching for the occasional pearl in all the fecal material, ya know?

Edie