Freedom of Speach and its Discontents

Both Ethical Martini and Poneke think Frog was wrong to recommend to its readers that they not watch, or consider a Broadcasting Standards complaint, over the Great Global Warming Swindle 'Documentary', which was screened recently on prime TV.

Ethical Martini, which is an interesting and worthwhile blog, would have preferred that Frog Blog encouraged its readers to argue the issues. I'm not so sure. Debate is great, but what debate is there actually to be had in the case of this documentary? What would really been achieved given that the long, long list of errors and falsehoods in Swindle have been pointed out many times without to-date causing its producer to resile from his position; nor stop media outlets from showing something they must now know to be dishonest, albeit good for the ratings.

Poneke's objection is less hard to glean but a generous reading of his or her post would suggest that Poneke's primary problem is Frog's attempt to stifle free speech through the threat of a BSA appeal.

As a defender of free speech I have been mulling over an abstracted version of this argument over the last few days and here's what I think:

First let's start with human rights. As some sort of rule utilitarian I support human rights, not for deontological reasons, but rather because I think they lead to a better world, which contains less suffering. They provide a basis for a sensible social contract where the individual is afforded protections from the collective; and history provides us with ample evidence to show that their violation leads to tragedy and horror.

Free speech is a particularly important human right - if it is prohibited, we can't even speak out to defend other rights. Free speech is essential to democracy too; indeed it is inherent to democracy.

Freedom of speech is also not so simple an issue as some of its defenders would make it seem.

The primary reason for this is that, as I have written previously, rights can be rivalrous. In other words, me making use of my rights can lead to you being deprived of yours. I can use my right of free speech to call for you to be silenced, for example.

In the 1994 Genocide in Rwanda radio stations were a key tool in mobilising the genocidaires in their attempted extermination of the Tutsi. Do we really want to defend free speech even when this speech is calling for genocide? Probably not. And, indeed, most nations don't - they have laws on their books that prohibit incitement to murder.

This is a clear infringement of people's right to free speech, but it seems justified.

And there are other ways that most democracies limit free speech to protect people. Lying, as we all learn one way or other, can be harmful. Not so harmful that we'd want to outlaw it, of course, at least in most instances. Yet in some cases it can be particularly harmful - say if a major newspaper were to accuse someone of being a foreign spy with no evidence. For this reason we have liable laws. Similarly, if a car dealer sells me a car which he claims to be 'as good as gold' while knowing it has dangerous faults, this could cause me physical and personal harm. So we have laws about that too.

When you think about it there are many ways in which democratic and apparently free societies restrict free speech for what appear to be quite justifiable reasons.

None of this is to say that some of these restrictions aren't problematic: liable laws, for example, (or threats of) are used all the time to silence what may well be reasonable criticisms. This is a real issue but few people would use it to argue the case that we should eliminate libel laws altogether - instead we just need to get the balance right.

Laws curtailing freedom of speech can also be dangerous through their unintended consequences - regulation, which may well-intentioned, could subsequently be used to silence genuine political dissent. Hate speech laws, and the recent debate around them in the UK, are a good example of this argument being played out. For this reason, and the danger of the ever-present slippery slope to authoritarianism, we need to be very wary about introducing new laws which may impede free speech.

So it's not simple. But this doesn't change the fact that we already restrict free speech in quite a few ways, most of which seem justifiable.

The relevance here to the Broadcasting Standards Authority, and our broadcasting laws, is that they too are a way of stifling certain types of speech. Frog provides us with the relevant section of New Zealand law:

Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

Setting aside the unnecessarily alarms bit (which I'm not at all sure is justified) this law reasonable enough. Less so now, perhaps, in the age of the internet, but for much of New Zealand's history, broadcasters occupied a particularly privileged position in New Zealand discourse. Often the enjoyed a near monopoly in information provision or, at the very least, were likely to be the only source of information for most people on most issues. Which puts them in a position of considerable power. Power which when abused can cause considerable harm.

Imagine, for example, if a New Zealand broadcaster produced a series of documentaries which claimed to show, without justification, that vaccinations caused cancer. And that this led to a significant number of New Zealanders not vaccinating their children. Herd immunity is perilously easy to loose and even if not everyone watched or believed the documentaries we could see a situation where epidemics broke out again and people died. To me it seems perfectly reasonable to stop this from occurring.

Just to be clear though: I don't think that anti-vaccination campaigners should be silenced. They should be free to speak their minds and to try and prove their claims scientifically (good luck to them, but that's another topic). But until these claims can be backed by fact they shouldn't be broadcast as such. The risk of harm is too great.

It's true that broadcasting laws can be abused and that slippery slope arguments against them are plausible enough but, once again, I think that these aren't arguments against their existence. Instead they show why we need to take time to get them right.

I'm open to being dissuaded from this stance - just as free speech itself is problematic so are almost all restrictions on it - but one thing that really doesn't wash is to start implying that someone is trying to silence free speech by using a law which has been long established without first making a coherent case, outside of one's views on the specific context, against the law.

--

As an aside, Prime could probably defend any BSA complaint by arguing that that they held a panel debate after the documentary showing, but I'm not sure. Firstly, is this really balanced? You've already given one side of the 'debate', surely balance would suggest giving the other side equivalent space, not sound bites in and amongst an argument. Also, in terms of public broadcasting and the complexities of science, is the hurley burley of a debate really the best way to let these be presented? Why not have let David Wratt (the only climatologist on the panel) simply outline the errors in an uninterrupted segment afterwards?

[Update: in comments Ethical Martini points out that he didn't claim Frog was wrong to recommend BSA complaints. In my original post, I didn't suggest this, I noted that I thought that this point was at the centre of Poneke's problem with Frog's post (although, to be fair to Poneke, I can't even say this with 100% certainty - it's hard to figure out what his/her actual problem with Frog's post is). I thought my original post was clear in its distinction here, but perhaps not - so I'm adding this update just to make doubly sure.]