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Free Speech

Written September 21, 2002

One of the problems that faces anyone committed to freedom of speech is defining the boundaries of what is acceptable. As someone is supposed to have said about pornography, some things are hard to describe but you know what they are when you see them. My opinion on speech is that there should be no restrictions unless real harm can be proved. This position still allows legal action to recover real damages caused by defamation and also covers the "shouting 'FIRE' in a theatre" cliché about causing panic and real physical harm. I drew a personal line with the Millenium Project when I decided not to list an anti-abortion site which gave explicit instructions on the best ways to kill certain named doctors and talked about the pleasure that would be felt at seeing the looks on their families' faces when they were murdered. Similarly, while I will list paedophile support sites I won't be listing sites which give instructions on how to actually get to the kids. In summary, my view is that a) anybody can say whatever they like if it only hurts people's feelings or attacks their opinions, b) it should be possible to recover financial damages caused by malicious falsehoods, and c) there are some things which civilised societies have a right to rule should not be said because they can cause real harm.

I live in Australia, and while we have a generally enlightened constitutional system (we have had universal suffrage and freedom from religion from the day the nation was born) we have no constitutional guarantee of free speech. Apart from the abuses wrought through our defamation laws, this lack of an acknowledged right doesn't have much impact on what we do or say. Occasionally, however, we get a reminder of how fragile the rights we take for granted are. Two events in the last week have shown how free speech on the Internet is under threat.

The first case involves Dr Frederick Toben and the Adelaide Institute web site. Dr Toben is a holocaust denier, and a court has ordered him to remove some material from his web site because it is historically inaccurate and it upsets some people. Well, that's tough. I have never met Dr Toben (although we have corresponded), but he strikes me as a sincere person even though I think his beliefs are totally wrong. I have met the plaintiff and he also seemed to be a sincere person. In this case I believe he is wrong also, and his action against Dr Toben will only serve to publicise the latter's views and make him appear to be a martyr. I don't know what Dr Toben's inner feelings are, but he doesn't seem to be preaching hate, just distorting history. The best way to counteract him is not to shut him up but to offer compelling evidence that he is wrong.

By coincidence, two days after the court ruling on Dr Toben's site, a racist named Jack Van Tongeren was released from prison after serving a 12-year sentence for a variety of race-hate crimes, including burning down Asian-owned businesses. Van Tongeren is totally unrepentant and immediately declared that "This is the last day of winter. Spring begins" and that it was business as usual. It is a mark of a civilised society that we accept that freed prisoners have paid their debts and we punish people for what they do, not what they say they will do, but it seems ironic that the courts can't and won't do anything about implied threats by an avowed racist with a history of violence but can jump all over the relatively harmless Dr Toben and his wacky web site.

The second case is one one sense trivial compared to closing down a web site because of its content, but in a way much more threatening because there is no sort of law that can prevent it from happening. Someone I know through the Internet was told by her ISP that she was in danger of having her account suspended because of her activities in Usenet newsgroups. The reason I say that this is more threatening is that it is impossible to make a law that forces a private organisation to take or keep anybody as a customer. As far as anyone can ascertain, her offence was to accuse someone who posts under a female persona of really being a man, and also to call this other person "Dilbert". I realise that not everyone will find the comic strip by Scott Adams as funny as I do, but this doesn't strike me as a major insult. It seems that the ISP reacted to a single complaint. The most likely reason for this is that for a large ISP with many thousands of customers each paying only a small amount each month it is cheaper to discard a customer than to spend time investigating complaints, but it would make me nervous if I were a customer. I am again placed in the position of defending someone with whom I have disagreed. She once described me as "contemptible", a view which she is perfectly entitled to hold and express, but it never occurred to me to complain to her ISP. I suppose I should tell her that she is lucky that she didn't call me "Superman".

In neither of these cases do I agree with what was said that made the person the target of the action. I think Dr Toben's reinvention of history is wrong and I found the continual repetition of the "he's a man" claims tiresome and silly, but it is only words we are talking about here. In both cases the time spent arguing with them could be more productively used elsewhere. Freedom of speech is an example of Pascal's Wager – the cost of choosing suppression and being wrong is far greater than the cost of choosing freedom and allowing the occasional mistake.


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