RE: No Offence: Councillors Consider Removing Word From Social Media Policy (February 17).
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Both councillors Alex Christian and John Fry wanted the wording to be changed to remove the inclusion of "offensive", with Cr Fry suggesting a qualifier such as "without restricting the councillors' right to free speech" be added to the policy.
Part of living in a liberal democracy and adhering to our much-cherished concept of the rule of law is our closely held value of our right to freedom of speech - or our privilege to express ourselves without fear of imprisonment or recrimination.
Unlike the Constitution of the USA, the Australian Constitution does not explicitly protect freedom of expression.
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In the US, First Amendment protections are there, but it is important to understand that by no means is it a free-for-all, the courts having been called upon countless times to determine when free speech applies or does not apply.
For example, among many other examples, US courts have found that freedom of speech does not include the right:
- To incite actions that would harm others (e.g., "[S]hout[ing] 'fire' in a crowded theater."). Schenck v. United States, 249 U.S. 47 (1919).
- To make or distribute obscene materials. Roth v. United States, 354 U.S. 476 (1957).
In Australia, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution.
In addition, we have laws that curtail 'free speech', for example, section 18C of the Racial Discrimination Act which makes it illegal to commit an act that is reasonably likely to "offend, insult, humiliate or intimidate" someone because of their race or ethnicity. Notably the verb offend is included, the adjective being "offensive".
In each of the US and Australia and many other countries, free speech brings with it responsibility as well as freedom to express ourselves.
Without fetter on the right of free speech, the fabric and smooth running of society would be eroded; communities would not be safe.
Either way, a right to free speech does not mean councillors with no filter or personal restraint are entitled to open slather and to say what first comes into their heads.