Freedom of speech, freedom of religion, and the (potential) right to be free from insult

[Stubby]

In fact, could you give an example of a statement that would clearly be subject to restraint/sanction under Australian law?

See Trad v Jones (No 3) [2009] NSWADT 318.

Trad sued a notorious Sydney shock jock radio announcer. The announcer made disparaging remarks about muslims and disparaging remarks about Lebanese muslims. The tribunal accepted that the remarks about "Lebanese muslims" were in breach of the Act because they singled out a specific country of origin. Remarks about muslims in general were not in breach of the Act.

Very clearly, the tribunal said, at [123]:

123 The Tribunal, of course, has no jurisdiction to deal with vilification on the basis of religion alone. While it was argued for Mr Trad that the term "Muslim" may be interpreted, for the purposes of the Act, as referring to "race" we do not accept that view.

...

124 That approach has consistently been adopted by the tribunal at both first instance and appeal panel and in we are not persuaded by Mr Trad’s argument that we should depart from that approach in these Reasons. (see for example Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 at [8]; Kunhi v University of New England [2008] NSWADT 333 at [4].)

Derogatory remarks inciting racial hatred? In breach of the Act.

Derogatory remarks about a religion? Not in breach of the Act.

Pretty simple, really.

[ants]

Do you have to be a libertarian? Perhaps it's simply an acknowledgement of the idea that there's no good way to deal with people making decisions on speech and their buying practices other than to let people make decisions on their buying practices.

Every time someone gets fired for saying something offensive we have this discussion. What exactly should be done about a bunch of free citizens imposing a cost on say...Sony that doesn't end up problematic in its own right?

Besides, I suppose we can all see why people are more disturbed by the government.

EDIT: Assuming that anyone buys into the idea that "free" in that sense is what matters of course.

No you don't have to be libertarian. But after debating on these boards for a while, I know they are the most enthusiastic about pushing that boat. Certainly there are people who believe in speech being (close to) unlimited from government intervention for a number of reasons.

I was just pointing out that it is a common misconception that speech is free, since the societal consequences (good or bad) are usually over-looked. And so the use of the word free is not really correct, and is used to simplify the argument. But it is probably a little misleading since it implies that speech has been truly free ever or anywhere. It is similar to people glossing over the restrictions on free speech that even the US Supreme Court allows.

The reality is that speech is not free, and that (almost) everyone agrees on boundaries. Even if those are as minimal as not shouting Fire and letting society punish offenders. But the fact we (almost) all agree there are some boundaries implies that the debate is not over free speech - it is where we put the boundaries.

[SeanF]

Well, it's either that or the idea that if we restrict any speech we might restrict the wrong speech or something. And that idea, while very common, is goddamn full of holes.

Basically, if you say "Even Nazis should get to voice their opinions", it poses the question why you think the opinions of Nazi are at all worth having in the "marketplace of ideas".

I mean, we regulate marketplaces all the time.

Generally, I think one establishes the truth through debate. So that would mean giving Nazis (or Islamists, or Communists) the opportunity to express themselves. Where the law should draw the line, in my view, is when it comes to the actual incitement of crimes against others.

[SeanF]

Right, and that is something very subjective. This is not something vague and unfortunately the slope does exist. Putting on labels like 'Hate Speech' can lead to powerful people, twisting that facet of speech to suit their own purpose and oppress a minority.I had already given examples of this very thing in the last thread.It is very easy to twist any criticism of Israel into being 'anit-semitic' and penalize or punish that person for being anti-semitic.Take Steven Salaita, who he is now jobless, homeless and without insurance because he criticized Israel and the people up top deemed that to be 'hate speech'. Someone decided that what he said was wrong and penalized him. Hence, because a select group of people were 'offended' by his remarks, a very subjective opinion on his speech led to him being punished for his free speech.http://coreyrobin.com/2014/08/06/another-professor-punished-for-anti-israel-views/Look at the case of Azhar Ahmed, https://firstlook.org/theintercept/2015/01/06/police-increasingly-monitoring-

criminalizing-online-speech/Or the case of the student at Brandeishttps://www.insidehighered.com/news/2014/12/23/debate-brandeis-over-students-twitter-comments-murder-nyc-police-officersThese are cases of folks venting on social media because they feel frustrated and helpless about their people being persecuted. Ahmed was angry about civilians in Afghanistan being killed and Khadijah was frustrated about police brutality against African-Americans.These scenarios have chilling effects on free speech. If I had lost someone very dear to me in Iraq and took to twitter to angrily wish death on war criminal George Bush, would I be arrested?Robert

Warrior, a native American and head of the American Indian Studies program at UIUC said it best. If he were to look around and wish that all the white people just disappear from the US, it would be an understandable sentiment of a colonized people. But then would he lose his job for being hateful against white people?Slippery slopes exist and there are very thin lines separating legitimate reasons for censoring speech like hate speech or speech that is sexually harassing and speech that mocks or criticizes ideologies, religions, state policies etc. Al Jazeera says that there are racist undertones to Charlie Hebdo's mockery of Islam. Are they right? Should Charlie Hebdo be penalized for racist speech? Why can a person mock and ridicule

muslims but be arrested for anti-semitic remarks in France or for sympathizing online with a terrorist?https://firstlook.org/theintercept/2015/01/14/days-hosting-massive-free-speech-march-france-arrests-comedian-facebook-comments/As much as I would like for hate speech or sexually harassing speech to be outlawed, the fact that these exceptions have been exploited to suppress dissent makes me go against any type of censorship of speech.

And, you are correct. Your examples demonstrate that Governments cannot be trusted to distinguish between good and bad speech.

[karaddin]

Argument from emotion.

There is a cost to free speech, I admit that and won't sugarcoat it. It allows people to say vile, hurtful things and sometimes results in the spread of awful ideas. I just wish you would admit that restricting speech also has a cost. As for your distinction between types of insults, how are such things determined? Could your own bias be at play here? What about a religious person being insulted by the comments or actions of someone else, rather than their mere existence?

In fact, could you give an example of a statement that would clearly be subject to restraint/sanction under Australian law?

Well I've already made my opinion clear that I wouldn't personally include religion as a protected class, however if it were then someone making a comparable insult on the basis of someones religion would fall afoul of such laws, that's clearly different to merely existing or being visible in public and having them take offense from that. Stubby has provided the example you asked for.

As for arguing from emotion, I reject the basic premise that emotion has no place anyway, it's part of a very very old established sexist power structure that places men as logical and women as emotional, and emotion as bad. We are talking about moral decisions, how the fuck is emotion not relevant?

I would say that the ability to censor opinions is wrong. It's a basic human right to be able to express your opinion even if that opinion is hateful and wrong. For example anti-vaxxers their speech and misinformation causes deaths but I don't think we should censor them. Or the KKK or Nazis o Anti Trans bigots, by protecting their rights we are protecting our own. By saying the governement cannot censor them we're setting a precedent that the government cannot censor us.

Yes. You, much like Ramsay, are expressing an opinion that it's never OK. I'm expressing an opinion that it is OK. I'm not quite sure how simply stating an opinion is supposed to be winning an argument or swaying me.

[Swordfish]

See Trad v Jones (No 3) [2009] NSWADT 318.

Trad sued a notorious Sydney shock jock radio announcer. The announcer made disparaging remarks about muslims and disparaging remarks about Lebanese muslims. The tribunal accepted that the remarks about "Lebanese muslims" were in breach of the Act because they singled out a specific country of origin. Remarks about muslims in general were not in breach of the Act.

Very clearly, the tribunal said, at [123]:

Derogatory remarks inciting racial hatred? In breach of the Act.

Derogatory remarks about a religion? Not in breach of the Act.

Pretty simple, really.

And more or less completely arbitrary yes?

[Dicer]

implies that the debate is not over free speech - it is where we put the boundaries.

And who decides where to put the boundaries. In Islamic countries it is the religious heads and dictators, in the so called enlightened west it's capitalism, money and politics that decides what should be allowed and not allowed.

I could point to two examples in the US that have liberals confused. Liberals in general are for free speech but not for hate speech or racist/anti-gay speech etc. Most liberals are also pro-Israel. So what they do they in a case of academic freedom of speech when presented with both cases? Be hypocrites.

In the first example I already mentioned, that of Steven Salaita denouncing Israel for the Gaza slaughter, there were liberals and even the most hard core proponents of free speech, like Cary Nelson who supported his firing. Cary Nelson stringently and fully supports free speech unless it's about Israel.

http://www.lawyersgunsmoneyblog.com/2014/09/cary-nelsons-ongoing-selective-war-academic-freedom

Then we have this guy, Marquette poli sci professor McAdams.

https://www.insidehighered.com/news/2014/12/18/marquette-professor-who-blogged-about-tas-decisions-class-suspended-pay-pending

Marquette University has suspended with pay and barred from campus the tenured professor who criticized a graduate student instructor in a personal blog, pending an investigation into his conduct.

John McAdams, an associate professor of political science at Marquette, last month wrote a controversial blog post accusing a teaching assistant in philosophy of shutting down a classroom conversation on gay marriage based on her own political beliefs. He based the post on a recording secretly made by a disgruntled student who wished that the instructor, Cheryl Abbate, had spent more time on the topic of gay marriage, which the student opposed. McAdams said Abbate, in not allowing a prolonged conversation about gay marriage, was “using a tactic typical among liberals,” in which opinions they disagree with “are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up.”

The story was picked up by various other blogs, and the second-year graduate student soon received critical messages via email, regular mail and online comment boards – some of which included lewd or profane remarks or threats.

Now, I totally disagree with this idiot, who upbraided a graduating teaching assistant on his personal blog because she espoused views supporting gay marriage in her classroom. But, what he wrote was in his personal blog and if I stand for academic free speech, then I should protest his suspension. Even if I do not agree with what he is saying. Cary Nelson would totally support this guy.

Now in both cases, we have free speech proponents who say that they don't agree with what Salaita or McAdams are saying, but they have a right to say it. We also have people who pick and chose what speech is free and allowed and what should be penalized. Conservative would have issues with McAdams being penalized for his right to be against gay marriage while liberals would think that he is being offensive and want him gone.

So if I say that Salaita has a right to his angry anti-Israel tweets (Which I don't find to be offensive but most Americans do), then I should also be okay with McAdams making his obnoxious anti-gay marriage comments (Which I think is offensive). This should be clear.

[Stubby]

And more or less completely arbitrary yes?

Nope.

Fully reasoned decision based on the evidence at the hearing and applying decisions that dated back about 100 years. Later affirmed by the High Court.

[ants]

And who decides where to put the boundaries. In Islamic countries it is the religious heads and dictators, in the so called enlightened west it's capitalism, money and politics that decides what should be allowed and not allowed.

I could point to two examples in the US that have liberals confused. Liberals in general are for free speech but not for hate speech or racist/anti-gay speech etc. Most liberals are also pro-Israel. So what they do they in a case of academic freedom of speech when presented with both cases? Be hypocrites.

In the first example I already mentioned, that of Steven Salaita denouncing Israel for the Gaza slaughter, there were liberals and even the most hard core proponents of free speech, like Cary Nelson who supported his firing. Cary Nelson stringently and fully supports free speech unless it's about Israel.

http://www.lawyersgunsmoneyblog.com/2014/09/cary-nelsons-ongoing-selective-war-academic-freedom

Then we have this guy, Marquette poli sci professor McAdams.

https://www.insidehighered.com/news/2014/12/18/marquette-professor-who-blogged-about-tas-decisions-class-suspended-pay-pending

Now, I totally disagree with this idiot, who upbraided a graduating teaching assistant on his personal blog because she espoused views supporting gay marriage in her classroom. But, what he wrote was in his personal blog and if I stand for academic free speech, then I should protest his suspension. Even if I do not agree with what he is saying. Cary Nelson would totally support this guy.

Now in both cases, we have free speech proponents who say that they don't agree with what Salaita or McAdams are saying, but they have a right to say it. We also have people who pick and chose what speech is free and allowed and what should be penalized. Conservative would have issues with McAdams being penalized for his right to be against gay marriage while liberals would think that he is being offensive and want him gone.

So if I say that Salaita has a right to his angry anti-Israel tweets (Which I don't find to be offensive but most Americans do), then I should also be okay with McAdams making his obnoxious anti-gay marriage comments (Which I think is offensive). This should be clear.

The irony is I don't see either of those as free speech issues. I see those as employers saying (figuratively) WTF? over the behaviour of employees. I'd have ended Steven Salaita's employment too. Anyone working for me who publishes publicly comments such as those about any head of state/country is making a significant lapse of judgement, and I doubt I'd want them working for me. And the second one is similar - she's a 2nd year graduate who could be learning/stuffed up/had good reasons for cutting the conversation short, and your approach is to write a blog about it? Yeah, that show's great people skills. Possibly sufficient to get rid of him. And they're investigating that.

If people want to in their speech show their lack of professionalism and skills, don't be surprised that the organisations that are paying money for the use of those abilities react to it. It would be like a magician who showed the trick behind his team's stunts on youtube being fired being surprised.

[Dicer]

The irony is I don't see either of those as free speech issues. I see those as employers saying (figuratively) WTF? over the behaviour of employees. I'd have ended Steven Salaita's employment too. Anyone working for me who publishes publicly comments such as those about any head of state/country is making a significant lapse of judgement, and I doubt I'd want them working for me. And the second one is similar - she's a 2nd year graduate who could be learning/stuffed up/had good reasons for cutting the conversation short, and your approach is to write a blog about it? Yeah, that show's great people skills. Possibly sufficient to get rid of him. And they're investigating that.

If people want to in their speech show their lack of professionalism and skills, don't be surprised that the organisations that are paying money for the use of those abilities react to it. It would be like a magician who showed the trick behind his team's stunts on youtube being fired being surprised.

So if I was working as a professor in an university and you were my department head and came upon my Israel-Palestine posts on this forum, you would fire me? Even though what I say here as part of my private life has nothing to do with me professionally teaching electrophysiology to my students? Even though I had an excellent academic record, good student evaluations, had tenure and peer reviewed high impact factor papers? You are saying that you would fire someone based on their free speech? So if they mocked a belief that you like, they could get fired?

According to you, criticizing Netanyahu for slaughtering 500 children is a significant lack of judgement? How about criticizing George W Bush? Would I lose my job for that too? What are the boundaries?

Marquette University may have a case since it's a private university. But UIUC is a public, state funded university and as such needs to follow first amendment free speech rights. UIUC also subscribes to AAUP rules and regulations as mentioned in their offer letters which states that "online statements as extramural activity as a citizen rather than as faculty performance, and the 1940 Statement of Principles cautions that when faculty members “speak or write as citizens they should be free from institutional censorship or discipline".

[ants]

So if I was working as a professor in an university and you were my department head and came upon my Israel-Palestine posts on this forum, you would fire me? Even though what I say here as part of my private life has nothing to do with me professionally teaching electrophysiology to my students? Even though I had an excellent academic record, good student evaluations, had tenure and peer reviewed high impact factor papers? You are saying that you would fire someone based on their free speech? So if they mocked a belief that you like, they could get fired?

According to you, criticizing Netanyahu for slaughtering 500 children is a significant lack of judgement? How about criticizing George W Bush? Would I lose my job for that too? What are the boundaries?

Marquette University may have a case since it's a private university. But UIUC is a public, state funded university and as such needs to follow first amendment free speech rights. UIUC also subscribes to AAUP rules and regulations as mentioned in their offer letters which states that "online statements as extramural activity as a citizen rather than as faculty performance, and the 1940 Statement of Principles cautions that when faculty members “speak or write as citizens they should be free from institutional censorship or discipline".

No, I wouldn't fire you. I've argued against Israel to. My issue is not what topic he expressed an opinion on. And it would be different if he posted what he did anonymously (like here) or amongst friends.

But he used twitter which is a public publishing tool (effectively) and published some extremely insulting things. Of the three tweets reproduced in the article you quoted, I have no issue with the middle one. It is a statement of logic and opinion. People might disagree, but it is an opinion that can be argued. Although I would frown on him referring to the Zionists as being responsible for equating Israel and Judaism. But the first and third statements are just insults, one to a world leader and one to a religious group. I wouldn't care if it was China/Taoism, India/Hindus, Bush/Christianity, it is in very poor taste. In my view for an employee to be making insults of people like that in a public forum with their name attached is a huge failure of judgement. The same opinions could have been expressed differently in a less crude and insulting manner to get the message across - that they weren't is the reason I'd be considering firing him. This employee will be representing your company.

Other work the individual had done would obviously be considered, but in a situation where he had not yet (or barely?) started I think is a particularly precarious time and a bad move to make such statements.

As I said, I thought both were poor examples because I thought that their bosses had reasons to act like they did regardless of who was the target of what was said/done in both cases. Not that the beliefs was wrong. So it wasn't the free speech that was the issue, it was the what their speech said about how they react/act that was the problem.

[Ser Scot A Ellison]

Ants,

Actually, it is sometimes legal to yell "Fire!" In a crowded theater. If there is a fire it's not just legal it's recommended.

[Gears of the Beast]

Ants,

Actually, it is sometimes legal to yell "Fire!" In a crowded theater. If there is a fire it's not just legal it's recommended.

It has always been falsely yell fire in a crowded theatre: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

Incidentally that opinion (where the phrase comes from) was part of a Supreme Court case (Schenck v. United States) where they decided that handing out leaflets that opposed the WWI draft was not protected speech and thus poor old Schenck was sent to prison for violating Espionage Act. So I think it's fair to say the Justice that came up with that fatuous phrase was in fact completely wrong about free speech.

[The Iceman of the North]

But he used twitter which is a public publishing tool (effectively) and published some extremely insulting things. Of the three tweets reproduced in the article you quoted, I have no issue with the middle one. It is a statement of logic and opinion. People might disagree, but it is an opinion that can be argued. Although I would frown on him referring to the Zionists as being responsible for equating Israel and Judaism. But the first and third statements are just insults, one to a world leader and one to a religious group. I wouldn't care if it was China/Taoism, India/Hindus, Bush/Christianity, it is in very poor taste. In my view for an employee to be making insults of people like that in a public forum with their name attached is a huge failure of judgement. The same opinions could have been expressed differently in a less crude and insulting manner to get the message across - that they weren't is the reason I'd be considering firing him. This employee will be representing your company.

Sorry Ants, but this reasoning is just bollocks. This is well within what one should accept within academic discourse. They are harsh, but no more insulting than the situation called for. If you can't insult leaders of foreign countries that are responsible for horrendous actions, like Netanyahu or Abbott, who can you insult?

[Ser Scot A Ellison]

Here’s bizarre case. California is seeking criminal charges against a rapper due to the lyrics he has in his music:

http://www.cnn.com/2015/01/23/entertainment/tiny-doo-rap-conspiracy-charges/index.html

From the article:

CNN)Song lyrics that glorify violence are hardly uncommon. But a prosecutor in California says one rapper's violent lyrics go beyond creative license to conspiracy.

San Diego-based rapper Tiny Doo has already spent eight months in prison, and faces 25 years to life in prison if convicted under a little-known California statute that makes it illegal to benefit from gang activities.

The statute in question is California Penal Code 182.5. The code makes it a felony for anyone to participate in a criminal street gang, have knowledge that a street gang has engaged in criminal activity, or benefit from that activity.

It's that last part -- benefiting from criminal activity -- that prosecutors are going after the rapper for.

Tiny Doo, whose real name is Brandon Duncan, faces nine counts of criminal street gang conspiracy because prosecutors allege he and 14 other alleged gang members increased their stature and respect following a rash of shootings in the city in 2013.

Prosecutors point to Tiny Doo's album, "No Safety," and to lyrics like "Ain't no safety on this pistol I'm holding" as examples of a "direct correlation to what the gang has been doing."

No one suggests the rapper ever actually pulled a trigger.

In fact, Duncan may rap about violence but he's got no criminal record.

Duncan told CNN's Don Lemon he's just "painting a picture of urban street life" with his lyrics.

I may not like his lyrics or gagsta rap generally but I really don’t like the State prosecuting someone based upon the content of the lyrics of their music

[Larry of the Lawn]

Heres bizarre case. California is seeking criminal charges against a rapper due to the lyrics he has in his music:

http://www.cnn.com/2015/01/23/entertainment/tiny-doo-rap-conspiracy-charges/index.html

From the article:

I may not like his lyrics or gagsta rap generally but I really dont like the State prosecuting someone based upon the content of the lyrics of their music

That's all kinds of fucked up. What about a journalist that covers gang violence or the narcotics squads that have jobs because of gang violence?

[Ser Scot A Ellison]

LtI,

And this is the type of stuff that can go down when people think it is just and proper to criminalize speech based on content.

[Castel]

Here’s bizarre case. California is seeking criminal charges against a rapper due to the lyrics he has in his music:

http://www.cnn.com/2015/01/23/entertainment/tiny-doo-rap-conspiracy-charges/index.html

From the article:

I may not like his lyrics or gagsta rap generally but I really don’t like the State prosecuting someone based upon the content of the lyrics of their music

If you can prove that his activities informed his rap or vice versa then surely just charge him on the activities or go away.

Perhaps I'm misunderstanding things since I have no idea what the fuck is going on here.

His bullshit about "merely painting a picture" does make me roll my eyes though. Perhaps he should get 25 years just for that.

[Shryke]

Generally, I think one establishes the truth through debate. So that would mean giving Nazis (or Islamists, or Communists) the opportunity to express themselves. Where the law should draw the line, in my view, is when it comes to the actual incitement of crimes against others.

We've already had the debate. Nazis are bad.

So what then are you asserting is the value of Nazis expressing their opinions?

[Shryke]

Right, and that is something very subjective.

And yet we do it just fine.

And this is in contravention to your entire argument that we can't do that.

Funny that.

This is not something vague and unfortunately the slope does exist. Putting on labels like 'Hate Speech' can lead to powerful people, twisting that facet of speech to suit their own purpose and oppress a minority.

I had already given examples of this very thing in the last thread.

It is very easy to twist any criticism of Israel into being 'anit-semitic' and penalize or punish that person for being anti-semitic.

Take Steven Salaita, who he is now jobless, homeless and without insurance because he criticized Israel and the people up top deemed that to be 'hate speech'. Someone decided that what he said was wrong and penalized him. Hence, because a select group of people were 'offended' by his remarks, a very subjective opinion on his speech led to him being punished for his free speech.

http://coreyrobin.com/2014/08/06/another-professor-punished-for-anti-israel-views/

Look at the case of Azhar Ahmed,

https://firstlook.org/theintercept/2015/01/06/police-increasingly-monitoring-criminalizing-online-speech/

Or the case of the student at Brandeis

https://www.insidehighered.com/news/2014/12/23/debate-brandeis-over-students-twitter-comments-murder-nyc-police-officers

These are cases of folks venting on social media because they feel frustrated and helpless about their people being persecuted. Ahmed was angry about civilians in Afghanistan being killed and Khadijah was frustrated about police brutality against African-Americans.

These scenarios have chilling effects on free speech. If I had lost someone very dear to me in Iraq and took to twitter to angrily wish death on war criminal George Bush, would I be arrested?

Robert Warrior, a native American and head of the American Indian Studies program at UIUC said it best. If he were to look around and wish that all the white people just disappear from the US, it would be an understandable sentiment of a colonized people. But then would he lose his job for being hateful against white people?

Slippery slopes exist and there are very thin lines separating legitimate reasons for censoring speech like hate speech or speech that is sexually harassing and speech that mocks or criticizes ideologies, religions, state policies etc. Al Jazeera says that there are racist undertones to Charlie Hebdo's mockery of Islam. Are they right? Should Charlie Hebdo be penalized for racist speech? Why can a person mock and ridicule muslims but be arrested for anti-semitic remarks in France or for sympathizing online with a terrorist?

https://firstlook.org/theintercept/2015/01/14/days-hosting-massive-free-speech-march-france-arrests-comedian-facebook-comments/

As much as I would like for hate speech or sexually harassing speech to be outlawed, the fact that these exceptions have been exploited to suppress dissent makes me go against any type of censorship of speech.

See Dicer, the funny thing here is you apparently didn't notice in all your examples that only a small handful have anything to do with the government at all. What I see is alot of private actors reacting to people's free speech. Marketplace of ideas and all that.

Whatever point you are trying to make doesn't actually make any sense because of that. Government regulation of speech and private reaction to speech are not the same thing.

And, you are correct. Your examples demonstrate that Governments cannot be trusted to distinguish between good and bad speech.

Didn't read very carefully did you?