When Free Speech is not Fair Speech
The controversy around the WikiLeaks saga reveals that freedom of speech is not a simple matter. Indeed, there is evidence to show that the legal right to free speech is used by some, including the United States government, as a matter of convenience.
The release in October and November, 2010 of secret United States documents and cables, previously leaked to WikiLeaks by named and unnamed sources, saw the US government and its allies loudly condemning the action, with some calling for the group’s spokesperson, Julian Assange, to be arrested and charged with treason. This prompted left-wing libertarians around the world to ask with one voice: Where is the United States government’s commitment to freedom of information and freedom of speech? Defending WikiLeaks’s action, they reminded politicians that, under a democratic rule of law, people have a right to know and a right to speak and that Julian Assange was doing nothing illegal.[197]
The United States Administration had a very difficult situation on its hands. While the constitutional amendment granting individuals the right to freedom of speech is always held up as the primary and central freedom enjoyed by US citizens, on this particular issue they were prepared to make an exception based on the possible harms that could come from the leaking of their sensitive documents.
My aim in raising the dilemma the United States finds itself in over the WikiLeaks controversy is not to analyse the controversy and present an opinion here but, rather, to show that the defence of freedom of speech is not always the simple matter it is made out to be when politicians, community leaders, libertarians and others use it to dismiss feminist arguments against pornography with the accusation of ‘censorship’. As with the WikiLeaks controversy, it is more complex, and deserving of more thoughtful analysis. Indeed, every activity, including pornography which uses the defence of free speech ought to be subjected to the test of fairness. It must be asked: Will this particular speech, this particular activity, cause harm or offence to anyone else?
While the charge of inconsistency can be aimed squarely at the US government on the WikiLeaks issue, left-wing libertarians and others who call for absolute freedom of speech also reveal their inconsistency on issues involving free speech which they deem to be unfair. Two recent examples involve religious vilification and paedophilia.
On 9 September, 2010, Florida Pastor, Terry Jones, announced that he would burn copies of the Koran on 11 September in protest against the attacks on the World Trade Centre by Muslim extremists in 2001. His announcement sparked outrage around the world and was openly condemned by President Barack Obama and Secretary of State Hillary Clinton, by the Vatican, by Muslim clerics, and Muslim and Christian people alike. When Pastor Jones’s Internet service provider cancelled his Website, he complained that his freedom of speech rights had been violated (http://www.abc.net.au/lateline/content/2010/s3007729.htm).
This is a clear example of free speech which was not fair speech and many people around the world – including free-speech advocates across the whole spectrum from right to left – spoke out loudly against Pastor Jones’s intended action and in favour of the Internet provider’s action. In doing so, they revealed their belief that speech which does harm to others is to be condemned.[198]
In November, 2010, Amazon.com was forced by public protest to remove from its Kindle reader an e-book by Phillip R. Greaves titled The Pedophile’s Guide to Love and Pleasure: A Child-Lover’s Code of Conduct. In this book, the author gives advice on how to use children for one’s own sexual pleasure, how to break the law and avoid being caught.
Initially, Amazon.com responded to the storm of criticism and protest by relying on the defence of freedom of speech. “www.Amazon.com believes it is censorship not to sell certain titles simply because we or others believe their message is objectionable” (http://www.presstv.ir/detail/150560.html). Using the Marketplace of Ideas argument for freedom of speech, they went on to state that they support the right of every individual to make their own decisions about what books they purchase.
Melinda Tankard Reist, in her 12 November, 2010 opinion piece, asked the question which was on every protester’s lips: “Should ‘freedom of speech’ trump a child’s right to be safe and not be harmed?” (http://www.abc.net.au/unleashed/41030.html).
The storm of protest via online opinion pieces, comments and blogs from people concerned about the harm this book could do to children, caused Amazon. com eventually to remove the title from Kindle. In this case, the perceived right to absolute freedom of speech was overridden by the urgency in the minds of the protesters to protect children.
While governments and free speech advocates may differ in their judgement about which issues require a less than absolute reliance on the defence of freedom of speech, there is one issue on which they all agree: Pornography. As if with one voice, they proclaim that pornography is a freedom of speech issue and any suggestion, even when backed up by solid evidence, that it does ongoing harm to women and irreparable damage to relationships, is met with disdain and labeled ‘censorship’. In the case of pornography, it seems that freedom of speech is more important than a woman’s right to equality, dignity and respect.
A Word about Censorship
There seems to be an irrational fear on the part of Western governments, lawyers and other devotees of absolute freedom of speech, that to censor anything at all will result in the eventual loss of all human rights. While such a fear is unfounded, the ‘slippery slope’ argument against censorship is vigorously supported in the case of pornography, regardless of all the evidence of the harm it does to women and children. It is remarkable, in my mind, that supposedly intelligent people are blind to the inconsistencies inherent in their opposition to censorship. Vehemently opposed to the censoring of pornography, they happily live in a society which has all manner of laws governing behaviour, including defamation laws, classification laws, road rules, and laws against physical and sexual violence. In order for people to live together in fairness and equality, any individual behaviour that has the potential to cause harm to others ought to be subject to laws governing behaviour.
Pornography: Free Speech which is not Fair Speech
If ‘the personal is political’ as early Second Wave feminists argued, then pornography as freedom of speech, as individual choice, as harmless fun, is called into question. Anything which happens to women at a personal level is also political and, as with religious vilification and paedophilia, pornography clearly fails the test of fairness. When pornography is scrutinised on the basis of the 2 counts mentioned earlier: power dynamics and the potential for harm, it fails on both counts.
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3 The fact that Julian Assange has been charged with sexual molestation under Swedish law is a separate matter altogether. While his supporters have sought to confuse the 2 issues, saying that the allegations of rape are simply a mechanism for having him extradited to Sweden and then on to the United States, the charge of sexual misconduct is real and ought to be dealt with independently from the WikiLeaks issues.
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4 Subsequently, on 20 March, 2011, Pastor Jones did carry out his threat to burn the Koran in the name of freedom of speech and, as a direct consequence of his action, 7 members of the United Nations staff in Afghanistan were murdered on 2 April by protesters incensed at the desecration of Islam’s holy book. Pastor Jones remarked that he had no regrets about his action.