December 22, 2005
Incitement to Violence
Let me start by pointing out that one of the fundamental principles of the Rule of Law is that legislation applies equally to all. What is the Rule of Law? Larry Solum can tell you.
When I see news items like this, I think two things. (1) Hooray and smack that person down and (2) why aren’t more prominent people being charged with exactly the same thing? I am a bit unsure on what basis this guy was charged, but if it had to do with sending text messages, it is probably the incitement to violence that was the alleged criminal act.
So, my question is, how are Alan Jones or Steve Price any different to this kid who sent around text messages? Given they read them out on talkback radio a couple of weeks ago, then, in particular Alan Jones, crowed about their involvement in this ‘show of strength’, why are they not being charged with incitement to violence?
I would even argue they are more culpable than the organisers of this kind of thing, because they are more influential in the community. If someone gets a message saying ‘let’s bash some Lebs’, lots of people would think what wankers these people are. However, as soon as it becomes mainstream, then at least some of those people think, ‘well, I guess its ok then.’.
I simply cannot understand, except to say that if they were prosecuted, they would undermine the government assertion that racism was not involved in these riots.
UPDATE: I forgot to link to Larry Solum’s entry on the Rule of Law. Fixed now.
The Law Thoughts 
Dash Brannigan said,
December 23, 2005 at 2:44 am
Two things of note.
It is a curiosity how even the most ardent suporters of free speech quiver when someone’s words or actions actually have an effect. Well, no not exactly, only when the view that is epxressed is not paletable.
Regarding the shock jocks and the unequal application of the law. Four legs good, two legs better my dear Commrade Napoleon, all animals are created equal but some are more equal than others.
Not my real name said,
December 23, 2005 at 10:53 am
Ah, I am indeed an ardent supporter of free speech. However, what you are forgetting is the overlap in this case between free speech and criminal activity.
I am not in support of free speech when it consititutes a criminal offence.
And yes, Alan Jones is more equal than most.
Dash Brannigan said,
December 23, 2005 at 1:17 pm
So who defines where free speech and criminal activity overlap?
Keep in mind I’m not talking about yelling “FIRE!” in a crowded movie theatre.
Personally I don’t like it (Irony intended). If we believe in free speech it has to be all of it. The uglier the better! Words are just that, words. It is only how they are internalized and acted upon that is wrong.
If you are someone who wants to go burn down a mosque because of the invective of Allan Jones… well you have a whole bunch of problems. It’s not Jones’ fault, it’s the wanker with the Molotov cocktail that’s the issue.
I write this as I am listening to George Calin’s 7 words you can’t say on TV… Funny and poignant.
Not my real name said,
December 23, 2005 at 1:30 pm
At this point, the criminal law defines the distinction. A really funny free speech case occurred when a protester mooned the police.
This was indecent exposure, so he was arrested. However, because he had a political slogan painted on his bum, the High Court held he was exercising his freedom of political communiction. Political mind, you, not just general free speech.
We have legislators and judges to enact laws and define the boundaries of free speech. The problem with your formulation is that with unbandied free speech, you end up with ignorant people being fuelled in their prejudices by people like Alan Jones, who are not just ‘free speeching’, but are grandstanding and polticising the entire thing.
We have boundaries on free speech for all sorts of reasons. For example, there is an overlap between free speech and defamation, is there not? We make and apply these rules all the time. Courts make judgments. If democratic legislators don’t like the judgments, they write overriding statutes, if they can push them through Parliament.
That’s who decides where the boundaries are. A thousand years of legal experience, some wise (generally) interpretation and then review by popularly appointed representatives, who can change those boundaries almost as they desire.
Not my real name said,
December 23, 2005 at 1:33 pm
Sorry, I forgot, as well, words aren’t just words. In my defamation example, mud sticks. People remember. Trial by media, all that jazz.
Really, it is the same with criminal incitement. Once people start geeing up the troops by exercising their ‘free speech’ (which just quietly is not protected by law in this country) it means more than just somebody reading out their view on Medicare in a monotone.
See what I mean? Once you have emotive and combative language being used, words are not just words. They create that emotion and combativeness in people who are vulnerable or open to those feelings.
That is why there has to be some restriction.