Sunday, 6 July 2008

Is free speech everything it's cracked up to be?

Case study 1#

The Dunedin queer community organised an awards event to cap off Pride Week. They put promotional posters on the temporary barriers around a building site, as several other event promoters had done. An employee of the city council put stickers reading 'Cancelled' over the Pride Week posters. He claimed he did it because the barriers are a no poster area. The mayor publicly stated his support for the actions of the council employee. The attendance of the awards event is significantly reduced. Both the mayor and council employee have used their right to free speech to make the queer community feel marginalised.

Case study 2#

Medical doctor and euthanasia activist Dr Philip Nitschke is visiting to Dunedin to speak in favour of his cause. The University of Otago – with its mandate to act as the critic and conscience of society – would not allow him to speak on campus. Nitschke's supporters booked a venue at a hotel for him to speak at, but the hotel backed out after calls from protesters. Nitschke has the right to free speech, but has had difficulty finding anyone to facilitate that right in Dunedin.

Case study 3#

A young woman was raped by four English rugby players. Few seem to believe the 'sex' wasn't consensual and many simply don't care, blaming the woman regardless. The woman has the right to give her account, and no shortage of media willing to publish it; but she, and we, know that to do so would bring a new barrage of cruel attacks on her actions and her character. A law professor publicly questioned her choice to write an anonymous letter about her experiences: this is not the right way for a rape victim to communicate, apparently, and makes her look suspicious. Members of the public are speculating about the woman on blogs, in pubs and elsewhere. The woman has the right to free speech but is justifiably too afraid to use it.

Free speech is a philosophical and practical problem which we debate and negotiate every day. I'm not saying it's unimportant, but I don't rate it as highly as the other ethics I hold dear as a feminist – and we've all seen instances in which the right to free speech is used to hinder feminist or other socially progressive activities. I don't consider the right to free speech more important than, for example, the right of a queer person to feel safe and valued in their community; but then again, I don't have any ideas about how the right to free speech could fairly or realistically be curbed. Most people believe the individual's right to speak should at some point be outweighed by the communities' rights, but where should that point be set?

I look forward to your comments!


Anonymous said...


Anna McM said...

In all circumstances, and irrespective of the harm caused? What about the classic example of shouting 'Fire' as a hoax in a crowded theatre?

Anonymous said...

This women may or may not have been raped - I'm not in a position to call that as there is so much misinformation flying around. However it is hard to accept that she won't make a police complaint but is prepared to provide info to the English RU inquiry. If she is worried about publicity etc well hello, what do you think the english tabloid press is going to be like on this one? In England, the public expect the soccer players to be in this sort of strife on a regular basis,but not the rugby fraternity - this will become an absolutely massive media feeding frenzy.

it is unfortunate too that the lack of a police complaint will do two things. 1, it will make any information she gives out (to the RFU or the press) immediately suspect in the eyes of those who take and support the other side of her story, and 2, she will run a massive risk of a libel lawsuit especially under UK law. Just work thru the process - complainant says this, 4 eye witnesses plus numerous supporting witnesses say that. No police evidence to support her. She is in a bad legal place.

I'm absolutely not saying what she claims is not true but it is unfortunately all about proof. Given the high profile nature of her complaint she absolutely had the opportunity for something which I'd imagine many rape victims don't always get and that is the full and undivided attention of the NZ Police plus as many high profile lawyers as she could shake a stick at. It may not always work well but if you want justice you have to go to the justice system. Now all she'll have is publicity and all the resulting things she claims not to want, but with no chance of a judicial outcome and the very real prospect of being sued into oblivion. I think she has been very badly advised.

Ari said...

That first case is so not free speech. You don't have the right to change someone else's message. As Anna points out, it's a good case for the "FIRE!" exception of comments designed to blatantly mislead and/or panic. Americans have one of the strongest free speech laws around, and even they accept this principle.

While I'm sympathetic to Nitschke, he doesn't necessarily have a right to be heard in any specific private forum. I think one of the risks you run having so many private meeting places and so much private media is that sometimes it stifles fair debate on controversial issues. All the more important to have public space available for discussion.

Anna McM said...

The Nitschke case is an interesting one - is the right to free speech meaningful when others prevent it from being facilitated? I'm not sure what my opinion is on this - I'm hoping someone else will come up with an answer!

Anon #2 - you've hit on the point. The woman can only speak about what happened to her if she does it in the way set out by the law (although is she is telling the truth, I don't see how a libel case could be brought against her). If she goes through the legal process, she of course reveals her name, the defense and media dig up everything about her, try to make her out a liar, straining her relationships, making it difficult for her to get or hold down a job, etc. Quite the price to pay for someone who's already been a victim of violence.

Anna McM said...

Also, her choice not to lay a complaint is not suspicious to me at all. You would only be suspicious if you thought the woman was lying, and I don't.

ms. poinsettia said...

I don't get the assumption that since the woman won't make a complaint to the police she is lying. It seems very clear to me that the woman will be revictimised by a judicial process through the media. Furthermore, in the extremely unlikely case that the men were found guilty and jailed, what would that outcome achieve? This might see controversial but it's not clear that throwing these guys in jails would represent justice. Sometimes rape survivors want their attackers to simply recognise and apologise for what they did.

I think the adversarial system is problematic because it perpetuates this idea that rapists are the scum of the earth, social misfits who jump out from behind bushes. Well, with one in five women reporting being raped in their lifetimes, it's more likely most rapists are just average guys. Focusing on the judicial process like this obscures any breakdown of the rape culture we live in by framing each rape case as 'just one guy (or group of guys)who was a bad egg'.

I think about all the hoo-ha over the Schollum, Shipton and Rickards case, which I foolishly thought suggested a cultural change in how we view rape. But no, those guys are just seen as bad bastards and when a very similar scenario comes up everyone reverts to form to blame the woman. People can't see the forest for the trees.

Sorry about tangent - I need to muse on the free speech question for a bit:)

Anna McM said...

I don't think it's a tangent, Ms P. I think the whole thing about who can and can't speak with authority about rape is incredibly important.

I included the rape case because the woman in question is not free to speak. If she speaks outside the legal system, it's suspicious - if she was telling the truth, apparently, she'd make a complaint. If she speaks through the system, the price is having her life pulled apart. In the meantime, people like Murray Deaker are free to speak, calling women like her 'bimbos' in a public forum. His right to free speech has been used to denigrate woman who hang out with rugby players, including those who are raped. As far as I can see, the only people who are genuinely speaking freely in this case (without social or other repercussions) are those who want to sink the boot into a rape victim. Irk.

Anonymous said...

Yes, in all circumstances, and irrespective of the harm caused. Anything else is worse.

Incitement is not speech, it is action. The "shouting fire in a crowded theatre" ruling was fairly despicable, but the principle regarding inciting imminent illegal action is completely reasonable. But none of your examples do that. They're all highly unfortunate, but none of them rise to the level of being justifiably restricted.

Anna McM said...

Hi Anon - not quite sure what you mean by the principle regarding inciting imminent illegal action is completely reasonable. Do you mean that it is reasonable to punish someone for using speech in such a way as to incite crime?

This suffers from the problem of being arbitrary - eg is it morally OK to use free speech to incite marital rape in a jurisdiction where it's legal, but not OK to do it in a jurisdiction where it's illegal?

I guess the principle behind making it illegal to incite crime is that it causes social harm - but the law and the social good don't always match, and you can cause a lot of social harm quite legally by using free speech.

Therein lies the problem with how the law deals with rape: the process by which women supposedly get justice re-victimises them. The law doesn't in this instance match with the social good.

Anna McM said...

Oh...I get it now. I'm slow! But when does speech become incitement, and surely incitement is part of free speech anyway?

Lita said...

Another great post Anna. The term 'free speech' makes me sigh cynically.

tussock said...

1: defacing posters so as to mislead potential customers should leave the council open to being sued. Free speech doesn't allow you to lie in ways that cost someone's commercial enterprise money.

2: Universities are businesses now, and as such they hate controversy.

3: I think you're missing that the woman can't make public claims of rape and still refuse to lay an official complaint, such is why it keeps getting reported as a "sex scandal".

I imagine, like the evidence in divorce proceedings were largely made secret a long time ago thanks to undue media attention, sexual crime cases may eventually go the same way. It doesn't seem to help anyone with the often random blitz of attention around them, at least in terms of specific cases.

barvasfiend said...

It seems to me that the system is already in place to deal with complaints of abuse. You are SUPPOSED to be able to go to the police, in confidentiality, and then make the accusation, and then watch them take it from there.

To me, this shouldn't be an issue of free speech. We have all just lost sight of the fact that the criminal complaints system should work better than it does. It should work how it was intended to.

We are only angsting over free speech now because the justice system has fallen short of providing justice, opening the door to people taking issues to the public.

Imagine if these issues could be bought in front of the court in privacy, the woman's identity remaining secret, and the men involved being named and shamed only when found guilty.

An idea so crazy, so outrageous, it just might work!

#13baby said...

I think the adversarial system is problematic because it perpetuates this idea that rapists are the scum of the earth, social misfits who jump out from behind bushes. Well, with one in five women reporting being raped in their lifetimes, it's more likely most rapists are just average guys

Or perhaps the average guy is a social misfit? I mean honestly, go by your average pub on a Friday night and listen to what the men are talking about. Booze, girls and fighting. Sigh.

Anna McM said...

I agree, barvasfiend, that improvements could certainly be made if the existing system worked as it ought to. But there remain some serious problems...

If a man is to be presumed innocent, the woman who claims she was raped by him must be assumed to be lying - therefore the sexual act was consensual. If this assumption of consent is made, the rapist must defend himself by pointing to the woman's propensity to lie, or to have consensual sex. The latter is particularly awful - it's assumed that if a woman likes sex and has it frequently, she will consent to sex with pretty much anyone and therefore can't be raped. There's no denying that this use of free speech against a woman isn't damaging to her, or to other women considering making rape complaints.

Besides, saying the criminal justice system should work as it's supposed to suggests that it was set up to try cases of rape. I think rape has been subsumed under a justice system primarily set up to adjudicate property disputes. Remember, marital rape wasn't a crime until relatively recently - it was clearly 'added on' to an already existing system.

I'm not intending to be flippant about the possibility of men being imprisoned wrongly for rape. I would suggest though, that where this has happened, it is in that relatively small number of cases of rapes committed by strangers, and the complainant has been raped but the attacker has been misidentified. Which doesn't make it OK, but puts it in perspective perhaps.

Anna McM said...

In relation to that last point, consider what Tussock said:

3: I think you're missing that the woman can't make public claims of rape and still refuse to lay an official complaint, such is why it keeps getting reported as a "sex scandal".

Why can't a woman who has been raped say so without making an official complaint? Domestic violence law is relatively sympathetic to the fact that a woman may choose to deal with abuse without laying charges; but then, it seems to be socially assumed that women are less likely to lie about domestic violence than about rape. Does it follow that a woman who won't make a complaint must have consented?

Also, the fact that universities are commercial enterprises facilitating some forms of speech over the other is the whole point. What I'm asking is how useful the right to free speech is when you can't exercise it - and questioning the politics of whose speech is facilitated and whose isn't.

Anonymous said...

Re para three in Anna's last post above and what Tussock said, an analogy would be if I accused someone publicly of breaking into my house and stealing my possessions without also laying a complaint with the Police. People will struggle to take me seriously and the defamation issue would come up.

The basis on which you could distinguish the two cases is that in the case of a rape complaint the prospect of following through with it is much less appealing than in a burglary complaint. But that distinction requires us to make assumptions about why the rape victim chose not to lay a complaint if she does not explain it herself.

Anna McM said...

Defamation doesn't apply if you're telling the truth. And if you're burgled, no one will suggest it was consensual or make any assumptions about the kind of person you are because of it. I think it's fair to make assumptions about why women don't make complaints about sexual violence - there's plenty of evidence on this. Plus, if you just regard women's non-complaining as a bunch of unrelated personal choices, you ignore a systemic injustice. If, for example, a large number of Pasifika people didn't report violence because they lacked confidence in the Police, we would tend to look at this as a social concern rather than a bunch of personal choices.

Anonymous said...

Anna, I definitely agree with the points you make. I was just clarifying my understanding of Tussock's point. It's pretty much impossible to analogise rape with any other type of crime really.

PS I am not the same anonymous as from 7 July.

Anna McM said...

Sorry Anon! I have an awful headcold and can't think clearly, so I keep missing the point!

M said...

Ok, this is the original anonymous. Sorry, I should leave a name.

Yes, it's true that you can't incite something that isn't illegal. Incitement is to a crime, or to public disorder. It's the action of encouraging somebody to commit those acts.

I think you can make a reasonable argument that there are things that are "morally criminal", like the marital rape example. Incitement to that can definitely be morally wrong, but the way you resolve that (in a legal sense) is by fixing the original law.

You're moving over into conflating two separate issues though: one is what can be said to be immoral, and one is what the state can justifiably restrict. It's true that you can cause social harm by speech, but that isn't enough to ban it (as speech) absent anything else. None of your examples are anything close to the necessary threshold.

The first may well be illegal other ways - as tussock pointed out, they could be sued, and probably should be.

The second isn't really speech-related, to be honest. I'm not sure what you were getting at there.

The third is more complex, but the media don't have much choice in what they say - "rape victim" will get them sued. The salaciously-slanted reports that have come out of some outlets are pretty despicable, but as long as they're not demonstrably false I don't see how it's possible to do anything about it. They seemed to be pretty careful to work through innuendo, for reasons of not getting sued by one party or another (a couple of them, I think the victim would have a reasonable case if she wanted to pursue it, but I imagine that she doesn't - of course, that's a problem itself).

The process of rape investigation and trial is definitely problematic. It serves to discourage reporting and even more actually following through all the way to trial. I don't really have any ideas on how to fix that.

Anna McM said...

Hi again Anon

The second point was that speech isn't really free if people act to inhibit it, or don't facilitate it. You're less likely to be given the opportunity to speak in a meaningful way (ie with people considering your views in a reasoned way) if you are saying something unpalatable to those in society who have more power than you. Look at Fox News, for example - critics of the Iraq war don't get much coverage there. What I'm suggesting is that, if society really valued free speech, we would act to facilitate it, rather than allowing what amounts to censorship by an inequitable social order. There is some precedent for this in electoral party funding, but not so much in other major social institutions. It seems bizarre to me that the right to free speech is invoked by people with bizarre and offensive views (ie Fred Phelps), yet the the right of those who want to contribute through free speech to a better educated public debate (eg euthanasia campaigners) have trouble being heard. Interpreting free speech as a negative right in this way seems to produce perverse social outcomes.

You suggest that if something is morally wrong, the law should be fixed to cover it. That is, to some degree, my point. The principle of free speech, and other liberal democratic principles, can stand in the way of fixing laws which victimise people - ie, you've said the media don't have much choice about how they report the rape case because they'll get sued. This is to say that we can't do anything else because the law is the law, and seems to contradict your idea that the law can and ought to be changed when there is moral reason.

Also, to simply denounce particular speech as immoral isn't really enough to shield victims from harm. For example, a school kid might be taunted every day by his peers with homophobic slurs. His peers are exercising their right to express their convictions that a) our school kid is gay, and b) being gay is undesirable. Eventually, our school kid might kill himself. There has been no incitement - no one has actually encouraged the kid to kill himself - so no criminal act committed. It's not a flippant example, since as we all know, bullying of every sort has horrific consequences. How could the right of the bullies to express their views about homosexuality ever be more important than the right of the school kid to live? Is it ok in this case to say that the restriction of free speech would be worse than this outcome?