Trivialising a gag on free expression

By MARK PEARSON

It was not surprising that many citizens would support the Victorian government’s ban on swearing in public places allowing police to issue $238.90 on the spot fines for profanities.

What was disappointing was the support of the language ban and the police powers by the former editor of The Age and the Herald-Sun, Bruce Guthrie (The Age, 12.6.11).

His opinion piece was tongue-in-cheek, with token swearing puns in the heading, intro and conclusion.

He derided the small crowd of protesters who demonstrated outside State Parliament against the law and suggested their cause paled in comparison with his own anti-Vietnam war and pro-indigenous apology protest marches.

Guthrie’s support for the laws was in part a call for ‘public propriety’ and partly a hope that swearers might extend their vocabulary beyond the profane.

But it amazes me that a former editor of major daily newspapers should so readily support a gag on speech and an extension of police powers.

He must have editorialised countless times on our freedom to communicate and upon police abuse of the powers they already have.

Swearing in public might not seem like a major free expression issue, but offensive language and behaviour has been at the centre of some of the free world’s most important judicial decisions.

Guthrie’s trite opinion piece happened to appear just as I was reading Ronald Collins and Sam Chaltain’s excellent history of US First Amendment cases – We Must Not Be Afraid to Be Free – Stories of Free Expression in America.

They explain that not all speech is protected in the United States, but make it clear that the Supreme Court has taken the right so seriously that obscenities and profanities have been protected when they have had a political message.

The F-bomb was even protected in the context of Guthrie’s heartfelt anti-Vietnam War cause in Cohen v. California in 1971 when a protester wore a jacket emblazoned with the words ‘Fuck the Draft’.

In January this year a superior court ruled a similar provision to the Victorian law unconstitutional in North Carolina after a woman appealed her arrest for using the words ‘damn’ and ‘assholes’ at police who had directed her to move along.

Some might feel the US has gone too far with its First Amendment protections. Journalists do not normally form part of this group. Neither does the New Zealand Supreme Court, it seems, which this year decided its Bill of Rights free expression provision protected Valerie Morse, an anti-war protester who burned her country’s flag during an Anzac Day dawn memorial service in Wellington. Her conviction for offensive behaviour was set aside on this basis. Surely burning your nation’s flag during a sacred day of remembrance is more ‘offensive’ than dropping the ‘f’ word in a Melbourne mall?

But an Economist blogger points to the greater concern about the Victorian gag law – that it will be used disproportionately against juveniles and minorities. They end with: “…let’s hope this is one of those laws on the books but never enforced…”

Guthrie puts us straight there when he reveals that 800 infringement notices for offensive language had already been issued by Victorian police during the new law’s trial during the 2009-10 financial year. Clearly, the police have not been reluctant to use their new powers.

Guthrie has exercised his own right to free expression by taking on News Limited in his recent court battle over unfair dismissal and his subsequent book Man Bites Murdoch revealing the inner workings of that organisation. He was able to write it because there is some semblance of free expression in this country, though it is being steadily eroded by politically expedient laws like this one in Victoria and by editors who appear blind to the fact that there is no such thing as a ‘minor’ act of censorship.

* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2011

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