Freedom of speech part 3

Partly because I’ve only had intermittent access to the blog over the past week, I haven’t got around to responding to Jason Soon and Andrew Norton on the debate over neoliberalism and free speech. Given this lag I thought it would be good to summarise the positions as I see them.

Neoliberals like Andrew and Jason are opposed to government restrictions on political freedom of speech with the usual narrowly-drawn exceptions (fraud, defamation of individuals and so on) but argue that

private property rights trump free speech as a general rule

. So, for example, employers and property owners can impose whatever restrictions they like on speech by their employees, tenants and so on, and government should not intervene.

I disagree with this, though not to the extent of arguing that no private restrictions on freedom of speech should be permitted. To give some substantive examples, I believe

  • Employers should be prohibited from discriminating against employees on the basis of political beliefs or off-the-job political activities
  • Similarly, landlords should be prohibited from discriminating against tenants
  • Governments should ensure that there is sufficient public space (both physical and media space) to permit the free expression of political views.

On the other hand, assuming that there are a range of media outlets, I don’t believe that individual media outlets should be required to be ‘balanced’, except for a requirement to correct defamatory falsehoods.

Having summarised the two positions as best I can, there are a lot of questions that remain. Most obviously, there’s the question of which position is right, that is, which produces the best consequences? Second, there’s the semantic issue of whether issues like those of raised are, as Jason says

nothing to do with free speech at all.

Third, there’s the history-of-thought question WWMS (What would Mill say?). Finally, there are some more specific issues regarding press freedom and academic freedom that I’d like to discuss further.

That’s enough for now. I hope to pick up the pace a bit on this one, but I’d appreciate it if anyone who thinks I’ve mischaracterized the neoliberal position speaks up now.

4 thoughts on “Freedom of speech part 3

  1. Classical liberals would also reject most defamation and libel law as unjustified restrictions on speech. Walter Block’s book “Defending the Undefendable” has a couple of chapters dealing with these issues, where he rejects ‘academic freedom’ as a denial of freedom of contract. I disagree that there is necessarily a conflict here, but he does provide some evidence to support your view that some classical liberals view freedom of contract as trumping freedom of speech.

  2. I think the landlord and tenant issue has almost nothing to do with freedom of speech, but the political activities of employees is an interesting issue.

    I have mixed feelings about anti-discrimination law as it applies to private organisations, but if it does exist (as it does) it should only apply when discrimination is based on a characteristic that is irrelevant to the job.

    For example, the National Tertiary Education Union last year advertised a job requiring just the kind of higher education expertise I have. The salary wasn’t too bad, either. But I think had I applied they would have been perfectly entitled to put my application in the bin, since my political views are diametrically opposed to their own. They could reasonably (and correctly!) have assumed that I would not dedicate myself to their goal of a massively regulated, publicly funded higher education sector.

    In a pluralistic society, this doesn’t matter – other people will employ me and publish my views on higher education. What matters is the society as a whole, not any institution in particular. I fully support the NTEU’s right to be wrong, and to maximise their capacity to put their case in its best possible form.

    Similarly, if an employee of a political organisation started behaving in a way that was plausibly contrary to the goals of that organisation, I think they are entitled to give that person the sack – they are entitled to hold their views, but not to undermine the employer’s interests.

  3. There is no point in asking what Mill would have said. If Andrew doesn’t agree with the argument he will say it’s outdated. I thought it might make sense to look at a concrete case and see what the lawyers are saying.

    Last year Justice Wilcox of the Federal Court found that the ANZ Bank had breached the Workplace Relations Act when it threatened Joy Buckland, a branch manager who was also president of the Finance Sector Union, with dismissal. One of the Bank’s complaints was that Buckland had spoken to a journalist about conditions of employment in banks generally.

    Justice Wilcox made reference to “an interesting (although now relatively old) article by Mr G J McCarry of the University of Sydney, The Contract of Employment and Freedom of Speech (1981) 2 Sydney Law Review 333”. (I apologise for the length of what follows, but I couldn’t see what to cut.) He continues:

    …Mr McCarry pointed out there is an implied term in a contract of employment that the employee will act in good faith… However, there is a question as to the import of that obligation in relation to public speech.
    Mr McCarry thought it is necessary to distinguish between statements of fact and comment. …He observed that the distinction had proved troublesome in defamation law. But, he said:
    “… the distinction seems necessary because perfectly legitimate reasons for requiring an employee to be silent with regard to facts or information (e.g. the protection of trade secrets or property rights) can have no application to comments or observations which do not involve any use or disclosure of fact.”
    Mr McCarry thought there are occasions when it is permissible for an employee to make statements of fact concerning the employer’s business. The primary example is where the employer has engaged in some iniquity. …Mr McCarry went on to say there are other situations in which an employee may or may not be free to speak out. He identified five factors relevant to determining that issue, but said “they fall far short of producing a cohesive body of principle”. The factors are:
    “1. The way in which the employee obtained the facts or data on which his comment is based;
    2. The employee’s position with the employer;
    3. Whether or not the employee is bound by a code of professional ethics;
    4. The employee’s motives;
    5. The extent of dissemination of the employee’s comment.”
    Mr McCarry argued the current law is too restrictive of employees’ freedom of speech. He said it should be reconsidered for two reasons:
    “First, many employers are large corporate bodies – some are so called `multi-national’ corporations – and the policies and practices of these employers can have repercussions throughout a community or, indeed, on a national economy. Such matters … are now generally regarded as issues for legitimate public concern and debate. Are employees to be precluded from joining in or initiating public debate on questions such as these? If so, on what basis and to what extent?
    A second reason why the employee’s position should be looked at is that rising standards of education in the community are apparently changing the expectations and capacities of the work force. The law should be examined to see whether it needs any adjustment to cope with these educationally caused changes.”
    182 Mr McCarry made recommendations for revised rules, dealing separately with private sector and public employees. In relation to the former, he proposed:
    “1. That any comment or analysis by an employee be based on an adequate knowledge of relevant facts;
    2. That such comment be couched in moderate and temperate language;
    3. That any comment be subject to the general law with regard to such matters as defamation, unseemly words, etc;
    4. In the event of dispute as to whether the first condition has been met, the onus should lie on the employee.”

    Seems fair enough to me!

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