AMCRAN

Laws for Insecurity? was a public forum on Terrorism Laws held on 17 November 2005 at Melbourne University Law School.

"Laws are presently before federal Parliament that will give police unprecedented detention and search powers. These laws will also expand the government’s power to ban organisations and prosecute Australians who politically dissent. They pose profound questions for all Australians: Will these laws promote the safety of Australians? Will they, on the other hand, inflict insecurity on Australians by increasing the risk of racial and religious profiling? What will they mean for the health of Australia’s democracy and multiculturalism?"

AMCRAN co-convenor Amir Butler was among a host of distinguished speakers including Petro Georgiou, MP, Professor George Williams, Gilbert & Tobin Centre for Public Law, University of New South Wales and Chair, Victorian Human Rights Consultation Committee, Victoria Sentas, Spokesperson on terrorism laws, Federation of Community Legal Centres, and Joo-Cheong Tham, Lecturer, Law Faculty, University of Melbourne and Committee Member, Liberty Victoria.

FREEDOM OF SPEECH: LIBERTY OR LIABILITY?
Amir Butler

Australian Muslim Civil Rights Advocacy Network (AMCRAN)

Introduction

Of all the freedoms that underpin our society, freedom of speech remains one of the most pivotal. For unless a man can speak freely and without fear of state retribution, then ideas cannot be communicated; social injustices cannot be opposed; scientific truth cannot be investigated; religion cannot be practiced; and the actions of the state cannot be criticised. Progress, as we understand it, would come to a grinding halt.

It is for this reason that totalitarian states view freedom of speech to be, like freedom of the press, something to be tightly controlled and managed. It is also for this reason that liberal democracies such as Australia place tremendous value on protecting freedoms of expression.

However, whereas freedom of speech might once have been jealously guarded and considered a fundamental principle of our society, we now find a disturbing theme emerging in proposed approaches to the threat of terror. This theme is the idea that freedom of speech is a liability in the effort to protect a society from terrorism and particularly Islamic extremism. Such thinking is, of course, not unique to Australia, but can be found in discussions of anti-terrorism measures in many democracies and especially those that find themselves, whether by choice or by fate, on the frontline of the so-called War on Terror.

Here in Australia, this view has manifested itself in many ways: in calls for so-called radical clerics who make inflammatory comments to be prosecuted; for the religious texts in Islamic schools to be subject to government ‘audit’; for books to be burnt; and for the state to establish some sort of quasi-government body to police Islamic thought in this country. Even some Muslim organisations and leaders have called for such measures: demonstrating the extent to which this idea that hateful or offensive speech leads automatically or with some certainty to violence and criminality has taken root throughout our community.

This is unfortunate. Whilst nobody would disagree that national security is an important responsibility of government, there is reason to be concerned when long-standing liberties are being eroded or discarded so easily and without proper justification.

The proposed laws against sedition and ‘indirect incitement’ provide a particularly instructive example of this view; with such laws seemingly predicated on the belief that there are some ideas that are so toxic – so poisonous -- that their articulation alone poses a grave threat to society. As the new sedition laws will allow, it is not even necessary that an idea or statement have any direct connection with terrorism or violence. It is sufficient that the authorities might deem a statement to offer ‘generalised support’ for terrorism or engage in what the government is terming ‘indirect incitement’. In other words, it is conceivable that someone who claimed that Osama Bin Laden was a “great man” or that Iraqis have the right to resist allied occupation might find themselves prosecuted under these laws.

This is, of course, all indicative of a much broader problem: the naïve and flawed view that freedom and security are competing values; that freedom from terrorist attack might be purchased in exchange for freedoms of expression.

This is a fool’s bargain.

For our freedom of expression represents one of the powerful and important weapons that a liberal democracy has in the face of the supposed threat of extremism – whether secular or religious.

It may seem paradoxical to some that allowing people to espouse hatred and extremist ideas makes our society safer, but there are some good reasons for this.

1. Freedom of Speech allows society to identify its extremist elements and understand their arguments.

Speech is the only public indicator of a person’s thoughts. It is therefore only by allowing someone to speak that we should come to learn about their ideas. The only means by which we might then learn who are the extremists in our midst and understand the nature of their supposed extremism is if they are allowed to express their ideas in public without fear of state retribution -- regardless of how obnoxious or offensive those views might be.

If we introduce laws which seek to outlaw certain types of extremist or offensive speech, then it will do little to alter the ideas that inspire that speech. Instead, it will only force people to convey their ideas in private and secret. Even if the legislation serves to reduce or eradicate ‘public incitement’, it will only lead to an increase ‘private incitement’. This, in turn, exacerbates the problems of law enforcement and intelligence gathering.

It also makes it very difficult for society to formulate a response to the problem if nobody knows that the problem exists or understands its ideological underpinning.

It must also be remembered that, by exposing themselves and their ideas to the scrutiny of the society, and I also include media scrutiny as part of this, such people find themselves subject to immense social pressure to conform. This is especially true in tight-knit ethnic or religious communities where intense internal pressure will come to bear on those seen to be bringing their community or faith into disrepute or provoking hostility against it. This form of pressure has proven itself a far more powerful means of social control than the interference of the state.

Indeed, if there are really dangerous people in our community, as the government has assured us, then would not society be safer knowing who they are and understanding the nature of their ideas? Or is safety to be found, like bliss, in ignorance?

2. Silencing ‘bad ideas’ strengthens them

If the state begins to prosecute people because of the ideas that they hold and the statements they make, then it gives legitimacy to those ideas and makes martyrs of those who hold them. It will be assumed, and with some justification, that when the apparatus of government moves to criminalise an idea, it is only because it is incapable of responding with an opposing idea. This is even more so the case in some sections of the Muslim community where there is already a tremendous distrust of the government and the growing view, particularly amongst the young, that much of the government’s anti-terrorism measures are aimed not just at genuine terrorists but any Muslim who disagrees with government policies.

Therefore, a measure intended to curtail the spread of a particular idea will potentially have the opposite effect: bestowing on an idea a sense of legitimacy and, in effect, making it more attractive to others.

Likewise, those who find themselves prosecuted for the ideas that they express will quickly become martyrs: growing in popularity and finding an audience for their ideas that will far surpass what they might have enjoyed had they been left alone.

This problem is notably evident in the Muslim community because, unlike most other faith communities, there is no formal body or structure responsible for the religion’s teachings. Catholicism, Protestantism or Judaism have clearly defined leaders and, particularly in the case of Christian churches, a formalized message and organizational structure. However, Islam does not have that. Therefore, anyone can establish himself as a religious authority and gather a following and there is no mechanism by which they can be stopped by some ‘church’ or ‘higher authority’.

If the intent is to combat dangerous ideas, then surely the last thing that the government should be doing is legitimising these ideas and beatifying their exponents in the process.

3. Laws limiting free speech have a chilling effect on dissent and debate

A further problem is that the connection between hateful speech and terrorism is tenuous at best. Not everyone who holds a radical political position or espouses even a venomous view of other sections of the community or the system by which they are governed will graduate to terrorism. In fact, only a minority of people translate their ideas into violent acts.

With the need for intent removed from the new sedition laws, it could leave many people exposed to the threat of prosecution for making statements or expressing views that, whilst not directly linked to criminality or terrorism, come under the broad definition of ‘indirect incitement’. The confusing nature and vagueness of this offence will almost certainly have a chilling effect on political dissent and debate.

In the case of the Muslim community, like all adherents of religions, they feel a sense of sympathy for the trials and tribulations of their coreligionists abroad. For this reason, it is not surprising, that perhaps the majority of Muslims oppose the invasion and occupation of Iraq. It is possible, however, that a denouncement of Australian involvement in the Iraqi occupation might be considered seditious.

Whilst the government has assured the community that it has no intention to pursue ‘legitimate debate’ or comment in ‘good faith’, the very possibility that such laws might be applied in this manner will nurture an atmosphere of self-censorship. This is especially true in a community such as the Muslim community where there is the growing view that the government’s anti-terrorism measures are focused squarely at the Muslim community. Many people will choose to err on the side of caution and refrain from expressing their political views or criticising government policies abroad.

The product of this self-censorship will be resentment and a feeling of disenfranchisement – regardless as to whether the government applies these laws or not. This feeling will not just be felt by the so-called radical or extreme elements in the Muslim community, but many mainstream or moderate Muslims as well.

At a time when Muslim communities are considered the frontline in the govenrment’s defence against domestic terrorism, does it make sense to introduce laws that are almost certain to alienate these people?

4. Freedom of Speech allows bad ideas to be refuted

We must understand that terrorism is merely a method. People are not inspired by the act of violence itself, but rather it is an ideology that inspires the terrorist to carry out the violence in service of some purpose or cause. The root cause of terrorism – whether inspired by secular or ostensibly religious ideals – is therefore, in part, ideological.

However, if the problem is ideological, then it stands to reason that the solution must also be, in part, ideological.

In a recent study of Muslim extremist groups over 1,000 years, researchers at Imam University in Riyadh, Saudi Arabia, found two consistent qualities present in all Muslims who engage in terrorism: a feeling that something is wrong, whether in belief or reality; and a shallow or incorrect understanding of Islamic law. They therefore react to an oft legitimate injustice, such as the absence of democracy in their societies or the kleptocratic mismanagement of their economies, but do so in a fundamentally misguided way. Whilst it may be impossible to address the social ills or political injustices that form the basis of Muslim grievances, Islamic scholars have been very successful in combating the ignorance and misguidance. In Saudi Arabia, for example, the Ministry of Interior recently changed its approach in dealing with its domestic terrorists and began using Islamic scholars to debate and argue with extremist ideologues on public television. When members of terrorist groups or those espousing extremist ideas are captured, and if they have not committed any crimes, they are visited by Islamic scholars in prison and undergo an education program. Similar programs have been employed in Yemen and they have been remarkably effective in diverting people from terrorism.

Whilst Australia does not face the challenges of Saudi Arabia or most Middle Eastern societies, we have been constantly warned that we do face the threat of domestic terrorism. Rather than deal with terrorism when it is too late, it makes more sense to deal with the ideas and views that underpin it: to address one of the root causes.

In the case of Muslim terrorism, this is something that can only be achieved by other Muslims, and particularly Muslim scholars and intellectuals. However, if extremist ideas are to be properly discredited and decisvely refuted then this must occur in the public domain. If a man believes that Osama Bin Laden is a great man, then he should be allowed to state that; and those who disagree should be allowed to state the opposing view. Conversely, if someone believes that all Muslims are terrorists, then likewise, let them express their view and let those who disagree refute it. It is only through the combating of one idea with another idea that the truth becomes known, errors are corrected, and society progresses.

However, this is only possible when people can discuss their views freely.

We should retain our confidence that the marketplace of ideas can discern the good idea from the bad. If an idea is offensive, then it will be exposed and rejected with the same efficiency with which defective goods or products are exposed in the commercial marketplace.

There is no reason to believe that the rules changed on September 11.

CONCLUSION

In conclusion, if we are to protect our society from terrorism then we must also protect our freedoms of speech. It is only by allowing people to express themselves that social pressure can be applied to those who may be inclined towards extremist ideologies or behaviours. To prosecute these people or criminalise their ideas would only serve to make them martyrs and bestow upon the ideas a legitimacy and respectability that would otherwise be denied to them. By removing the requirement of a clear connection between a person’s speech and some criminal or violent result, it creates a disturbingly broad definition of ‘sedition’ that will, if not lead to the prosecution of people for ‘thought crimes’, will at least have a chilling and stifling effect on public debate; therefore fueling resentment amongst those who see themselves denied, whether in reality or perception, the right to express their political views. This will, in turn, only serve to further increase the sense of disenfranchisement amongst a section of the community that already feels under siege yet is considered by experts to be the most important asset in the government’s efforts against domestic terror.

Whilst one can well appreciate the need of government to protect its citizenry and few would doubt that the threat of terrorism is now an all too real phenomena, the government risks undermining this effort by limiting free speech unnecessarily.