High Court case with significant free speech implications

The High Court is currently hearing a fascinating freedom of speech case with potentially significant implications:

 Two evangelists have become the unlikely standard bearers for free speech in Australia as they fight a council ban on their preaching. The brothers’ fire and brimstone sermons had become a regular piece of street theatre on Friday evenings in Adelaide’s CBD…

The city initially fined the pair and then modified council bylaws to silence them by denying them a permit to preach. The brothers challenged the decision in court, explaining they believe public speaking is the only avenue open to them.

While these preachers may well be a nuisance, it is not clear that this justifies a local council restricting freedom of speech in what is obviously public space. Private property owners can reasonably set conditions of behaviour for anyone who wishes to enter their land without it being an infringement on free speech. But if we allow councils and other levels of government an unlimited ability to restrict free speech in public places, we leave virtually no space where people can speak freely.

This will be a case to watch closely.

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Media regulation taking shape

Mark Day reports in The Australian this morning ($):

As I understand it, there are two camps within the government on media regulation. The hawks, led by Communications Minister Stephen Conroy and supported by Wayne Swan, want substantive changes designed to bring the media to heel, including a public-interest test to vet future media mergers and acquisitions and a statutory body to rule on standards that could include new privacy laws.

Others urge a more cautious approach, pointing out existing rules cater for most cases of media excess, and the required reforms can be achieved by removing much outmoded regulation.

[Emphasis added].

It seems clear from this report – and others in recent weeks – that we are either going to get a lot more media regulation or just quite a bit of extra media regulation. Whether the government goes for a “hawkish” or “cautious” approach, it will still be proposing more curbs on free speech. It is truly incredible that in a liberal democracy like Australia that policies to “bring the media to heel” can even be contemplated.

The IPA will continue to staunchly resist any extra regulation on our right to speak or hear.

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Spin State getting out of control

The Australian reports this morning on a very strange email we received last week ($):

PUBLIC relations staff from the Department of Broadband, Communications and the Digital Economy are hawking articles praising the NBN to publications, telling editors they are free to run the stories under the names of their own journalists.

James Paterson, editor of the Institute of Public Affairs Review, which has been fiercely critical of the NBN, was startled to receive an offer of an article from an adviser at DBCDE on Friday offering a “meticulously researched” article on the NBN and women “quite gratis”. A follow-up email explained “the article is overly long — but deliberately so, to give you more choice if you cut”, while asking Mr Paterson to retain references in it to the Broadband Champions program launched last year by Communications Minister Stephen Conroy.

A third told Mr Paterson: “I have no problems with you by-lining it from your team.”

Where to begin?

It’s disturbing enough that taxpayers are employing public servants to write pro-government spin (which has sadly been going on for a long time). Next time the CPSU or one of their state-based equivalents says we can’t possibly cut the public service without hurting hospitals and schools, remember this.

But it’s even more disturbing that at least one government department thinks it is ok to ghost-write articles praising government policy and then encourages editors to pretend it was written by independent journalists. That’s government-directed plagiarism, and it is coming from the department of a minister who thinks that journalists can’t be trusted to behave ethically.

This episode shows we certainly can’t trust the government to behave ethically when it comes to the media. It is yet another reason why we should oppose the recommendations of the Finkelstein review to give the government more power over the press.

UPDATE: If you are not a subscriber to The Australian, you can read this report on the incident.

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Jail for being immature and dumb

Setting up a Facebook page which rates the sexual performance of women is puerile. It’s also not very smart. But should it land you in jail? According to a Victorian Magistrates Court, the answer is yes:

A central Victorian man who posted offensive personal comments about women on Facebook has been sentenced to four months in jail.

David McRory, 22, of Bendigo pleaded guilty to using a carriage service to offend and publishing objectionable material online on Facebook.

The Bendigo Advertiser has more details on McRory, who it should be noted was also convicted of other, unrelated offences.

There’s no question that the page he and another man set up (also awarded jail time, but with a suspended sentence) was in bad taste. The people named would no doubt be embarrassed and offended. But are their hurt feeling sufficient to justify jail time for immature young men?

We would argue it isn’t. As with cases involving stupid comments on Twitter in the UK ending in jail sentences, authorities are showing extreme sensitivity to online communications that more often than not would be much better off ignored.

To be clear, Facebook should be completely free (and would be well advised) to remove pages like this as they are created. Freedom of speech does not entitle you to use someone else’s property to broadcast your message, and it is not a limit on free speech for Facebook to choose what it publishes on its own site. It does become a freedom of speech issue when the state treats online communications as a criminal matter.

Police and the courts are setting themselves up for a massively increased workload if they intend to hunt down every dumb comment made online by people barely out of high school.

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Some good news on free speech

Two good pieces of news on free speech this morning.

Firstly, a report in The Australian suggests the government is cooling on Finkelstein-style media regulation – although they are still said to favour some form of “self-regulation” ($):

CABINET ministers are cooling on proposals for a government-funded regulator to police the print media as Labor comes under fire for seeking “political payback” over news coverage it does not like.

Julia Gillard has stepped back from the reform plan urged by former Federal Court judge Ray Finkelstein while some of her cabinet colleagues are urging caution on the idea of setting up a statutory regulator of the print media.

It is understood that self-regulation has since emerged as the government’s preferred option, although it could see Canberra setting standards to be applied by industry bodies such as the Australian Press Council.

Communications Minister Stephen Conroy has not endorsed the Finkelstein proposal and is said to favour self-regulation.

Secondly, Opposition Shadow Attorney General George Brandis has delivered a wide-ranging speech on freedom of speech that significantly adds to Opposition Leader Tony Abbott’s remarks at the IPA earlier this month. Excerpted in The Australian today, he says ($):

What Mill thought was no longer necessary in mid-Victorian England is now, astonishingly, necessary in 21st-century Australia. Almost four centuries after Milton’s ageless plea for the freedom of the press, more than two centuries after the newly born American republic adopted the first amendment, we in Australia find that fundamental prerequisite to political freedom challenged. And the challenge is not merely a challenge to the freedom of the press arising from an expert report. It is a comprehensive challenge – arising from a modern-day puritanism, driven by an ideologue’s intolerance of alternative or dissenting views, and condoned if not actually encouraged by a complicit government – to the very centrality of freedom of speech as one of our society’s core values.

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This is getting crazy

Just when you think proposals for media regulation can’t get any more scary, in comes Labor MP Steve Gibbons ($):

One of Labor’s most strident media reform advocates has called for journalists and media outlets to be fined or temporarily banned from publishing for inaccurate or misleading reporting.

MP for Bendigo Steve Gibbons, a long-time News Limited critic, told parliament today the government’s Finkelstein inquiry into media regulation had fallen short in its recommendations to improve media reporting.

He said misleading reporting should carry similar penalties to misleading advertising, citing recent multi-million dollar fines for such conduct by Apple and internet service provider TPG.

“In my view, fines such as these for publishing blatant untruths or misleading news reports, or temporary suspensions of the right to publish or broadcast, would lead to a major improvement in the accuracy and fairness of our media,” Mr Gibbons said.

“So when a media outlet, journalist, or red-necked shock jock deliberately broadcasts or publishes a statement that they know is factually wrong, and it is subsequently proven that they knew it was factually wrong, they ought to be subject to an appropriate penalty.”

He said misleading reporting carried serious consequences for democracy, and should be harshly treated to prevent its occurrence.

“A misinformed public cannot possibly form reasonable views about matters of national importance,” he said.

This is a timely reminder that there are actual federal members of parliament – who we entrust with the power to pass legislation that regulates our lives – who seriously believe that even Finkelstein did not go far enough.

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Property rights trumped again

A recent court case in Queensland highlights a disturbing trend: the ‘right’ not to be discriminated against trumps all other rights. A motel in the mining town of Moranbah this week lost their case in the Queensland Civil and Administrative Tribunal against a sex worker who they had banned from renting a room. The tribunal found that their ban contravened Queensland’s Anti-Discrimination Act.

The case was extensively previewed in an article in the Weekend Australian Magazine in June ($):

One of the towns that Karlaa most likes to visit is Moranbah. By her own reckoning she’s stayed at every one of its six motels but preferred the Drover’s Rest, where she stayed 17 times in two years until June 29, 2010 – when the rug was abruptly pulled from under her business.

According to Karlaa, that day started like any other: she saw a few early morning clients and then “cleaned the room thoroughly. I don’t want to give anyone an excuse to throw me out.” Shortly before 10am she went to settle her account but, according to documents lodged with the Queensland Civil and Administrative Tribunal, she got a frosty reception. “The owner, Joan Hartley, she told me next time I came to Moranbah I’d have to stay somewhere else,” Karlaa says. “When I asked her, ‘Why’s that?’ she said, ‘We think you’re a sex worker’ and the way she said it, she was judging me. She gave me the impression that what I do, it’s disgusting, it’s filth; it was ‘we don’t want that in our backyard’.”

Karlaa says she told Hartley she was being “discriminated against on the basis of lawful sexual activity”, to which Hartley responded, “So sue me”. So Karlaa did. She lodged a complaint with the tribunal, saying she was “asked unnecessary questions about being a sex worker and that she was overcharged because of her status as a sex worker”. But her complaint was dismissed last October on what might be called a technicality: the Drover’s Rest motel is licensed to serve alcohol and under the terms of Queensland’s Liquor Act the owners aren’t allowed to let people run businesses from the rooms. Karlaa has appealed on the grounds that many people use the telephone or the internet for business while staying in a motel room, and that using the bed can’t be that different. The appeal is due to be held next month.

But shouldn’t the owners of a business be free to choose who they offer their services too? Particularly if they are worried, as the owners appear to be in this case, that someone is engaging in an activity on their premises that could damage their business?

The concept of property rights dictates that no one should be forced to allow activity on their property that they do not want to have take place. The concept of freedom of contract dictates that  business owners should be able insist that reasonable conditions are met in exchange for their services – like that their rooms aren’t used to run other businesses. And freedom of association means that you should never have to associate with someone you don’t want to. For example, women should be free to exercise in a women-only gym (like Fernwood), and for that to be possible, the owners of the gym should be free to ban men from the premises.

But these rights seem to be easily swept away as soon as an accusation of discrimination is made – just as we have seen with freedom of speech and the Andrew Bolt case.

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