Free speech and the media are too often in a marriage of convenience

Who can say what to whom in Australia? In this six-part series, we look at the complex idea of freedom of speech, who gets to exercise it and whether it is being curtailed in public debate.

The closely related concepts of free speech and a free media have deep roots in our political culture. They can be traced back more than 350 years to the period of struggle in England against the licensing of the press.

John Milton, in his 1644 address to parliament, Areopagitica, argued passionately for a free press and the abolition of licensing. But this was not finally attained until the enactment of the Statute of Anne in 1710.

Press licensing has left a deep imprint on our political DNA. This imprint can be seen most vividly in the First Amendment to the US Bill of Rights, which asserts that Congress shall make no law for the abridgement of the press. While Australia has no such sweeping protection, the idea of licensing newspapers has never gained any sustained political traction here.

The reason is that a free press – now including all news media – is essential to the functioning of a capitalist democracy. Without it, citizens have no means of exercising the powers of what John Locke called the sovereign people. They would be robbed of the information necessary to making political and economic decisions, and of knowing what others in society, outside their immediate circle, were doing.

A free press also gives practical effect to the individual right of free speech. It enables one person’s voice to be heard by many and, with the arrival of digital technology, for the many to speak with the many.

For all its fundamental importance, however, free speech is not treated by our society as an absolute value. It is constrained on occasion when it collides with other values. These include the value of justice and the value that says we should not cause unjustifiable harm. Consequently we have laws concerning national security, defamation and contempt of court – to name the most obvious – all of which constrain free speech.

However, there are serious questions to be asked in contemporary Australia about the reach of these constraints.

The most urgent arise from national security laws. Since the September 11 attacks on New York and Washington in 2001, successive Australian governments have enacted increasingly oppressive laws that abridge free speech in the name of national security.

Two examples among many will suffice.

In 2003, parliament enacted The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act, giving ASIO power to seek warrants to question and detain people for up to seven days.

This law prevented any media scrutiny of the current operations of ASIO, including any scrutiny of these extra-judicial detentions.

Concretely, a journalist who may reveal by his or her writings to have good information about matters of national security, can be detained under these provisions. And any person detained, or knowing about the detention, is prohibited from speaking to anyone about it.

In 2014, parliament enacted the National Security Legislation Amendment Act (No 1). Section 35P of that act makes it an offence to disclose information relating to a “special intelligence operation”, or SIO. Because of other national security laws, it is impossible to know what SIOs are on foot, so it is possible for a journalist to write unwittingly about one and fall foul of this law.

Then there are the laws concerning metadata, which enable government agencies to track journalists’ communications closely, putting confidential sources and whistleblowers at grave risk.

These measures aroused a lot of justifiable concern, and in 2007 a coalition of 12 of Australia’s big media companies formed Australia’s Right to Know. Its purpose was to draw public attention to the issue, and to work to improve Australia’s comparatively low ranking globally for freedom of speech.

At that time, Australia had slipped from 12th to 28th on an international index of press freedom compiled across 169 countries by the Paris-based organisation Reporters Without Borders.

The decline is a serious matter, but the creation of the Right to Know coalition did invite the question: When big media speak up to defend free speech, whose speech are they really sticking up for – their own or everybody’s?

This question came into sharp focus during the lead-up to the 2016 federal election, when a citizen called Duncan Storrar went on the ABC television program Q&A. Storrar asked about the Coalition government’s plan to give workers who earn more than A$80,000 a year a tax cut, while providing nothing for low-income earners.

The incisiveness of his questions allied to his unkempt appearance and uneducated way of speaking gave him a degree of credibility that was instantly celebrated on social media. He became emblematic of the forgotten people in the Australian economy.

Within 24 hours, the media – in particular the News Corp newspapers – had torn him down. He had had the temerity to yell from the outer, so to speak, and now his personal life, which included convictions for assault, drug possession and making threats to kill, was laid bare.

He had served his sentence for these offences and was at liberty to participate in the democratic process, including by putting questions to politicians in public forums. His past was not in the least bit relevant to his exercising of this liberty. But he paid a heavy price, exacted by the very newspapers who had spearheaded the Right to Know coalition.

This piece of hypocrisy was entirely consistent with the Australian media’s attitude to free speech in the wider sense – speech beyond the media’s own.

In 2012, two reports to the federal government recommended the introduction of a more exacting system for making the media accountable to the public for the way they did their job. One was the Independent Report into Media and Media Regulation (the Finkelstein Report) and the other was the Convergence Review.

The newspaper companies attacked these reports – especially Finkelstein’s – with unbridled ferocity as attacks on free speech. Finkelstein was branded as no better than Mao or Stalin.

So while the media are the indispensable means by which society gives effect to the free speech ideal, they can be self-servingly selective in whose speech they prioritise.