Freedom of contract or freedom of speech

A number of comments on the Folau case have made the point that Folau failed to pay attention to the terms of his contracts with Rugby Australia [1] and also with GoFundMe, with the implication that he has only himself to blame for the outcome .

That’s a cute debating point, but it’s not one that should be used by those of us concerned with protecting workers’ rights. The use of contractual terms to constrain what workers say and do outside working hours is a misuse of the power of employers and a danger to free speech on issues of all kinds. The fact that we don’t like Folau’s use of this freedom shouldn’t lead to a retreat from the principle that, within very broad limits, what we do and say in our own time is no business of the boss.

The issue with GoFundMe is less problematic: funding a legal dispute is not obviously part of the site’s mission[2]. But we should be wary of the idea that Internet platforms should be able to set whatever terms of service they like and interpret them as they wish.

fn1 As with just about everything in this case, the exact status of the contract is a matter of dispute

fn2 neither is this much-mocked request by two layabouts for money to fund a trip to Africa that is beyond the resources of the mother who is currently working two jobs to support them in idleness)..

109 thoughts on “Freedom of contract or freedom of speech

  1. I agree with the principle being espoused by Prof Quiggin re workers rights to free speech outside work hours . However I assume Folau’s comments breach some of the state based anti-discrimination laws and someone in Folau’s position isn’t an ordinary 9 to 5 worker. If you’re a professional sportsperson, you are also an ambassador for your sport 24/7.

  2. The problem with freedom of religion is that there is a whole lot of religion out there and if one gets the freedom they should all expect the same freedom. Presumably this would include paganism, scientology and Rastafarianism. To be fair, atheists, agnostics and humanist should also get a seat at the table.

    Irrespective of their particulars, they should not be free to avoid the consequences of the law.

    So it’s immaterial that Folau has referenced text from a bible, the fact is that he used hate speech.

    Christians need to step back a little and accept that they are just one among many and should not (continue to) expect exceptional privilege.

  3. I was perhaps being incomplete. Everyone agrees some ideas should get you sacked from some jobs.
    Let’s choose the most egregious examples to be clearest – an anti-semite or Nazi would be likely to be fired from a public-facing job even a low ranking one; a police officer, for instance, or a secretary at a business. And it becomes even more restrictive as your job gets more public facing. Is that terrible? I don’t agree.
    There’s also the other side, which is the deterrence of informal opprobrium. Again, Nazis are treated differently than other people in polite company.
    What that means is that if you’re a Nazi, you might choose to pretend not to be. And hopefully your hateful ideas will die with you.
    Of course the issue with this is the misuse of these two extra-legal tools. As is routinely done in this country! Ask Bob Brown if you do not agree, or perhaps Yassmin etc. The right is perfectly happy to use both these tools to sharply police the limit of acceptable left wing debate. But when turned around, even in relatively mild form, this is supposedly a violation of free speech. Nonsense.
    The question is not – should all ideas be acceptable and all people who hold those ideas treated the same. Nobody in government believes that, as far as I can tell; perhaps you’re the exception. The question is whether along with socialism, anarchism, environmentalism etc we should add racism, homophobia and fascism.

  4. I’ve got no problem with criminalizing Holocaust denial. I think it’s already covered under 18C.

    It would depend on the facts of the individual case, but I think it’s quite likely that typical instances of Holocaust denial would fall within the scope of 18C: but 18C criminalises nothing. Nobody can be subjected to criminal prosecution for actions in breach of 18C: they can be subjected to other kinds of legal process, which might in some cases result in being required to pay compensation; but no criminal penalties apply.

  5. How can a country which does not recognise the Armenian holocaust then have the effrontery to say denying the the Nazi holocaust is illegal?

  6. How can a country which does not recognise the Armenian holocaust then have the effrontery to say denying the the Nazi holocaust is illegal?

    Please reread what I wrote. Section 18C does not say that denying the Nazi holocaust is illegal: it gives a general description of a category of behaviour which it makes unlawful, it doesn’t give any specific examples. It’s likely that typical examples of Holocaust denial would fall into that category, but it would depend on the facts of an individual case. It’s just as likely that typical examples of denial of the Armenian massacres would also fall within the scope of section 18C, but that too would depend on the facts of the individual case.

  7. JD,
    My statement is fine whether it is illegal or not.\

    Personally I would not make it illegal. People stupid enough to deny the nazi holocaust as seen as the lying fools they are.

  8. To answer my own question, probably a very good essay. The themes – basic freedoms, capitalist employment practices, double standards and hypocrisy – would all suit.

  9. Smithy,
    sorry have only just seen your comments.
    No Leviticus does not apply to the workplace as Australia is not a theocratic country and never will be.Nor should it ever be.
    you will note although the ACT of homosexuality continued to be seen as sinful in the N/T people who continue in such acts or to be evenhanded in adultery or fornication for heterosexuals are merely told to to leave the Church

  10. Nottrampis

    you can’t argue, as you have, that anyone should unconditionally be able to quote the bible free of consequences for their employment, and then when presented with an obvious counter example say, “apart from that”.

    As always, it’s a matter of where you draw the line. I don’t think what Folau tweeted should be a sackable offence. His employer disagrees. You can argue freedom of religion, whatever that means, until you are blue in the face, but the only way to resolve the case, if the parties don’t settle their differences, is for a judge to make a judgment based on employment law.

  11. Nottrampis says: “I should add why did you ignore the same punishment for adultery?”

    Try using the brain you were born with. Homosexuals, unlike adulterers, have been persecuted, imprisoned, killed, terrorised, forced to undergo medical treatment, declared insane by the medical establishment and driven to suicide for 2,000 years at the hands of the Christian religious cult.

    Even today, conservative Baptist preachers in America are calling the mass extermination of homosexuals. ***

  12. Smithy,
    What Folau put out was simply Christianity is all about. All people are simmers. If you do not repent you go to hell. If you do and accept Jesus who had paid your price you go to heaven.

    Simple as that.
    If you can be sacked for that hen anyone can be sacked for spouting any biblical passage.

    you put up a passage that included people performing homosexual acts but not heterosexual acts that were outlawed. As I said Australia is not and never wil be a theocratic nation so there is no comparison.

    As for Hugo anyone who advocates the murder of anyone is not a christian.

  13. “As for Hugo anyone who advocates the murder of anyone is not a christian.”

    In the context of Hugo’s post, that pretty much reads as “do as you want with them ….., just make sure they maintain pulse at the end of it all”

  14. “All people are simmers.”

    Not at all. When it comes to non-issues like this, most people stay cool, while a minority reach boiling point.

  15. well Smithy,
    It seems a lot of people are hitting a boiling point about something they do not believe in.

    Me I want a court to determine whether any employer can sack me because I paraphrase or even write a bible verse

  16. JQ: ‘if what you say is legal and unrelated to your work it’s none of the boss’s business.’
    The difficulty is defining ‘unrelated’.
    You teach in a conservative church school in a small town. You stand for election for the atheists party. Some parents are uncomfortable with having their kids in your class. Is that the boss’s business?

  17. “Is that the boss’s business?”

    No. This is in fact one of the crucial cases that’s going to come up, and it’s a crucial one if you support freedom of religion.

  18. Yes if it is a private school it is certainly the bosses business. Athiest do not have a right to work for a Catholic, or Anglican, or Muslim, or Jewish school. An organization has a right to enforce discipline among its members.
    A national government is the supreme organization with the responsiblity to enforce discipline among all subordiante and independent organizations with in the territory that it is responsible for. That includes religous institutions. To make a long story short freedom of religion is very important. But it is not absolute. It has been esablished for a very long time that religous freedom can be curtailed when there is a compeling public interest.
    Therefore to lance this boil very quickly a religion can decide who gets to be a member of the religion or who gets excuded. But the government gets to decide not only whether these religous institutions get to stone to death adulterers or homosexuals or athiests, but whether they can even openly teach that a government should stone adulterers or homosexuals.
    In the world that we live in those who make decisions on behalf of the government will reach different conlusions depending upon their background.
    OK I have to skip several chapters here. But in essence no matter who makes this final decision it is not really a “legitimate” decision. It is only an illegitimate provisionsl decision. The reason is that all the human theories that have ever been developed to try to create a foundation of legitimacy that a government can rest upon are faulty. Government is never legitimate. So we may as well get over
    our thinking that if we just have a free and fair election that the elected representives, or theologians or generals, or Platonic Confuscian Philosopher Warriors will usually make the correct decsion.
    But just because government is not legitmate does not mean that it is unneccessary. We humans could not live 15 minutes with out it. But of course if it is a bad government we might die in 16 minutes anyways. Having a government does not guarantee success. Not having one guarantees failure.
    So what this means is that human beings have to decide what the rules of their society are by picking what battles to fight and how to fight them. For example we can fight religous bigotry from outside of (a) religion by attacking the foundations of the religion. Or we can work from inside the religion to rearange the interpretation that a religion places on different texts or versuses.
    Now to bring this rant back to is it the bosses business, if an organization can not determine who is or is not a member and enforce discipline upon its membership how can non governmental organizations be expected to effectively function. Non Governmental Organizations preform a crucial function of offering a potential counter weight to the abuses of the state. And likewise the state has to protect society from potential abuses of NGOs.
    Wow I see a fascinating connection to another type of discipline which I am going to have to cover next.

  19. OK I see a need to bring up the question of military discipline here as the military and the police are the enforcement arms of the state.
    I want to deal first of all with the military. The power of a government to carry out policy is very vast.
    We have already mentioned that it is not a legitimate power but a provesional power. In addition the world authorities have theoretically “provesionally” placed one limit on the power of all governments.
    That is that they lack the power to wage a war of aggression. It does not matter if a nation held a referendum and voted unanimously to invade a country that had not attacked anyone any attempt by that government to act of such a vote is illegitimate. The people lack the authority to behave like criminals. They do not have the authority to delegate such authority to a government that they do not have themselves.
    Although military organizations often get drawn in to national disputes that is not their primary purpose.
    Their primary purpose of the military is to protect the citizens of the country from threats that arise outside the country. But it happens very frequently in our world that the institutions of the (a) state come under the control of an organized continuing criminal enterprise. In (my) theory the leadership of the military SHOULD be the last institution corrupted for illegitimate purposes. Sadly it seems that in practice military leaders are often the FIRST to be corrupted and to seek illigimate goals.
    Because a nation’s military usually has an overwhelming coercive power it bears final responsiblity for the behavior of the state. Therefore being able to enforce discipline in the military is of crucial importance. But that discipline is no more legitimate than the edicts of the state. The power of a General to command obiedance is provisional. It is not absolute. Of course the Generals would have you believe otherwise.
    As we look around the world we can see that Generals are often nothing more than a bunch of criminal sociopaths leading organizations that have less legitimacy than a Mexican Drug Cartel. It is the job of the field grade officers to hold them accountable. Of course that is a really really difficult job. Especially with the way that militaries have been structured. They are not structured to defend Republics they are structured to maintain empires.
    In a military that is designed to defend a Republic the ability to enforce discipline goes in BOTH directions. If shit rolls down hill the troops have a right to throw it back where it came from. We can not expect that such a turn of customs would make a miltary ungovernable. To say that would be bullshit.
    Those at the top have access to such a vast array of resources that if they can not successfully defend their decisions to their own rank and file it would be a sign of complete incompetence.
    Therefore if a General were to give a Colonel an order to attack a country such as Venezuela that has not attacked anyone that Colonel not only has a right to disobey he has an obligation to try to arrest that General and any Coconspirators in this policy in his own Government. More importantly he has an obligation to make sure that his men are trained to that standard. Anything less is to be a counterfit.
    Anything less and a person is a Nazi officer dressed in the uniform of another nation.
    In a military designed to defend a Republic the officers must fear their men as much as the men fear their officers.

  20. In essence christians believe they can discriminate between those who are destined for heaven and those who are going to hell. This has put them at odds with the law, which we expect to be the only judge.

    Christians want to change the law so that their ability to judge is protected, from other religions and from the law.

  21. Rog,
    You comment caused me to ask myself another question which I have not explicitly asked myself before. That is to whom does a religous institution such as the Catholic Church, or the Anglican Church, belong? Does it belong to the Pope in the case of Catholics or does it belong to all active members of a Catholic Parish.
    I am not actually sure what the official formal answer of the Catholic Church would be. I would suspect that it would avoid the question by saying that all Catholic Church propery is the property of God and that the Church simply administers it on God’s behalf with the Institution of the the Catholic Church led by the Pope making the day to day decisions about how to administer that property. I suspect that the Anglican Church answer would be very similar.
    I think that with most protestant denominations the ownership of the property would clearly be with the members as the Pastors clearly have an employment contract with the Congregation.
    I think that the issue of property is significant because while religous groups clearly have a lot of common law history on thier side to protect them in trying to spread damaging ideas, it is quite difficult to spread damaging ideas when you lack the resources to do it.
    I think that it is a perfectly acceptable decision of a government to use its power of national economic oversight to promote religous views which promote national harmony and good will and to hinder those religions which promote distrust and harmful policies. A person could of course say that such a policy would set very dangerous precedents. Well not doing that sets very dangerous conditions as well.
    Furthermore if the people deciding that a religous group represents a danger to the public welfare, because of some theological point that they are trying to spread, come from a broad section of society it seems to likely that such fears would be justified.
    And in addition I have always proposed a court process that allows jury nullification. That would be another check on a government power to oppress an unpopular religion. Say that a government wanted to outlaw a religion (or a politcal party) because they deemed that it was incompatible with the nation’s constitution. Well by my proposal for jury nullification a jury would not only have to find that a defendent(s) are guilty of breaking the law at least 11 of 13 jurors would need to agree that the law was just to be able to send anyone to prison. And 9 would be needed to impose any fines.
    It is easy to imagine a government in this world that would seek oppress religous movements that support a woman’s right to control her womb. It is just as easy to imagine a government that would seek to oppress those religous movements that insist that a pregnant woman be forced to carry her pregnacy to term. A jury nullification process would make it more difficult for either tendency to win decisively in the short term. We can call it a force mulitplier for a minority. But, I do not support a world in which minority view points can spit on the views of the majority with impunity. There should be risks for everyone so that people limit themselves to fighting those battles that they think are the most important.

  22. Nottrampis asks whether an employee should face dismissal if they quote or paraphrase a Bible verse. The Christian Bible is soaked in blood. If you approvingly quote the incest, rape, murder,genocide, enslavement, human sacrifice etc verses in the Bible, there may be occasions when this is not compatible with your ongoing employment.

  23. The tendency of the little Putins to want to punish people for expressing an opinion is wrong in itself and will lead to bad consequences.

  24. Me I want a court to determine whether any employer can sack me because I paraphrase or even write a bible verse

    Well, you’re all out of luck, then, because no court is ever going to determine that for you.

    Personally I can’t think of one good reason why a court should determine that for you, and I’m not sure why would want that, but in any case I’m sure it’s not going to happen, so you’d better toughen up and get used to it.

  25. I looked at Folau’s social media pages on which he posted his warnings of hellfire and bloody damnation, and at the time of those posts the pictures on his pages showed him in representative rugby togs scoring tries and holding up trophies. He has since changed the pictures. However a visitor to those pages would have got s fairly unequivocal message that Israel Folau, Australian and NSW representative rugby player, thinks gays etc are going to Hell. Given that Rugby Australia has a policy of seeking and promoting respectful relations with LGBTIQ people, I don’t think it’s unreasonable for it to expect that when its agents publicly display themselves as such, the content of such displays should be consistent with its policies. If Folau’s social media pages showed him in mufti as Israel Folau, private citizen, the content of his posts would be none of Rugby Australia’s business.

  26. No Paul unless you need english lessons a person would have gained an impression ALL people are going to hell unless they repent.
    you have not shown how entry to hell or heaven has to do with playing rugby, viewing rugby or even watching rugby.
    Now if Folau had said homosexuals should play rugby you would have a case,
    As it is He has in fact encouraged them to play…

  27. “…a person would have gained an impression ALL people are going to hell unless they repent.”

    Not at all. As I’ve heard it, far from your “ALL”, or Folau’s actual “so many”, only a few certain sets of people were specifically mentioned in Folau’s spray: warning drunks homosexuals adulterers liars fornicators thieves atheists idolaters hell awaits you repent! only jesus saves.

    Geez, he’d of got far closer to “ALL” and “so many” if he’d just also included tattooed folks… Why would he leave these out? Because he is tattoed, or because his Jesus is tattoed (which can be read as a good, or a bad thing, and excluded on both grounds though ingenuously by Folau on only one), or both?

    https ://
    “A recent study by Pew Research, claims roughly 40 percent of Millennials have tattoos.”

    https ://

  28. Given Putin’s persecution of gays and lesbians, Smith9’s comment needed an /s tag -or at least, some indication that he was aware of the irony.

  29. No Paul unless you need english lessons …

    I wouldn’t have mentioned it if you hadn’t brought it up first, but since you did, I’m going to say that if I was drawing up a list of people in this discussion who could benefit from some English lessons, it wouldn’t be Paul Norton who was at the head of it.

  30. Regardless of how the Folau case turns out (I suspect a settlement is likely), I think it has finally killed any claim to a right for churches to sack school and hospital employees who breach church teaching (which apparently consists solely of a prohibition on being gay – I never heard of anyone being sacked for avarice, gluttony, anger, pride, or even idolatry).

  31. John,
    you are wrong again,
    No church school as far as I am aware has sacked a teacher for simply being gay. The people you describe would be if they publicly advocated the offences you list.Again I would ask why would they would wish to work at such a school.

    Can I add A settlement is highly unlikely. I thought a fund of $2m made it plain this is to go on to get a court ruling.
    If we find out the ruling eventually goes against folau then quite a few employees will be searching the internet to get rid of employees they do not like. Reminding people that most employees are not in unions to help them.

    It takes a lot of ‘skill’ to peruse a list of things that includes all people and miss all of them except one in a paraphrase and then miss all the biblical references.A lot of skill.

  32. I think Homer is on the money here, this is a bigger issue than just one boofhead footy player having a contract dispute.

    This is the Christian tribe fighting to reestablish their dominance in the marketplace. Pell was a major blow, as was same sex marriage. Immigration, education, health, employment needs to be controlled, defined by religion.

    They have deep pockets and will up the ante.

  33. Christian schools get taxpayer money. Why should gay taxpayers not be entitled to a job that is funded by their taxes? Christian schools have traditionally also excluded black teachers and students from white schools for theological reasons, often citing the Curse of Ham. Should back to basics Christian schools be free to exclude blacks and maybe keep a few chained in the basement as slaves? Don;t laugh, as this was common Christian practice less than two centuries ago.

    And yes, christo-fascist schools are sacking gay teachers: ***

  34. Again Homers pedantry is true, AFAIK there are no public records stating that a teacher has been sacked from a Christian school for being gay. He omitted the recent letter co-signed by 34 principals saying that they want the right to sack gay teachers, a right they claim under the principle of ‘religious freedom’.

  35. …I never heard of anyone being sacked for avarice, gluttony, anger, pride, or even idolatry

    Generally sackable listed religionist transgressions?

    Drunkenness, dishonesty, and violence are grounds for instant dismissal. Insubordination sometimes stands up. Sloth requires more time.

  36. Nottrampis. I assume you are deliberately missing irony alerts, but what you really need is an incomprehensibility/incomprehension alert. You might wish to “peruse” a list of the seven deadly sins.

  37. Pell was a major blow

    A major blow with a minor, which is why he’s in jail.

  38. The 4th of July is around the corner. Under normal circumstances I would think that the 4th of July would be a difficult time for the USA to launch a sneak (preemptive) attack because so many servicemen would not be on duty due to it being a holiday. If leaves were cancelled then that would tip off the potential targets.
    I wonder with the modern technomogy that currrently exists if everything could be set up for a 4th of July launch of an attack with just skeleton crews working at some locations?
    OK for the Navy the 4th is really no different than any other day. Submarines and air craft carriers will be at sea reguardless of whether or not it is a holiday. Aircraft can cover long distances in short times.
    Perhaps the Air Force could launch its assets between by 3 or 4 am and still be home in time to enjoy breakfast with the children. The US Army will really not have any role in the opening stages of an attack. For the rest of the allies of the USA it is not even a holiday.
    It would be quite a cliqsche for Trump to come on TV at 8 pm New York time on the 4th of July and announce to the nation that the US (and at least some of its allies) have just carried out a successful attack on one or more of the enemies of the US government. That would really get his base fired up for the 4th of July fireworks.
    Iran has ruled out negotiations. I can not blame them for that. I told them not to negotiate the first time around. Such a refusal to negotiate a second time could encourage the leaders in the US to launch an attack sooner rather than latter.
    But since new sanctions were only recently announced I do not expect a US attack before Sept. The US leaders will want to let those sanctions cause more problems for Iran brfore attacking. Also in September it will not be as hot and a downed pilot will have a better chance of being rescued if he does not die of heat stroke in two hours. We do stand on the precipce though. Everything has been done to paralyze the thinking of the Iranians, Russians, and Chinese now just like everything was done to paralyze the thinking of the Germans in early June of 1944. Shit now that I say that I think that an attack before the 1st of August is much more likely.
    I wrote the other day that based upon the suicide of a US 2 star General in 2016 that the US government had already decided at that time that it was going to attack Iran and or Venezuela in 2019.
    But in thinking about this further I think that the US decided way back in 2003 that it was going to Russia, China, Iran Venezuela, and North Korea at some point in the mid term future. I do not know if 2019 was set as the target date that early but I bet that 2019 as the year of the attack was decided on by 2016.
    If anyone wants to read how I figured this out you can see my comments at the tropicsofmeta, after the article about the German General Rommel.

  39. I realise you were using irony, but as a person in a non-marriage live-in relationship with a Catholic school teacher, I can tell you it’s not just the gays threatened.

  40. Again,
    there is no action to have power to sack gay teachers simply because they are gay teachers.. It is action to ask people to leave if they publicly admit to actions which are in contrast to what they are supposed to be teaching pupils. It is all about actions which are incompatible with the teaching at school.

    John I knew you were trying to be ‘smart but unfortunately you got caught on your own petard. To repeat myself anyone publicly advocating the seven deadly sins would be asked to leave.. anyone publicly advocating adultery or fornication would be asked to leave. A teacher who regularly got drunk and would not change would be asked to leave.
    Everyone stumbles John. Everyone. The problem for the schools are the people who see nothing wrong with the stumble.

    no-one is forced to teach in conservative christian school where the belief system is diametrically opposite to what you believe.

    The reason I use the term publicly admission/ advocate is people is said schools have far too much work to work to go through private behaviour patterns. It is public behaviour patterns which are important here.. My guess is they take on face value what is said at an interview and only act if behaviour is at odds with what was said. A bit like most workplaces in that way I guess.

  41. Shoot, I meant to put those comments on the Monday Message board. I would certianly approve if the comments were to be moved there.

  42. J-D in response to JQ:

    JQ: “I’ve got no problem with criminalizing Holocaust denial. I think it’s already covered under 18C.”

    J-D: “It would depend on the facts of the individual case, but I think it’s quite likely that typical instances of Holocaust denial would fall within the scope of 18C: but 18C criminalises nothing. Nobody can be subjected to criminal prosecution for actions in breach of 18C: they can be subjected to other kinds of legal process, which might in some cases result in being required to pay compensation; but no criminal penalties apply.”

    This article (from just under 18C) supports J-D’s understanding.

    P.S. I am flattered by J-D’s opinion of my communication skills.

  43. “anyone publicly advocating the seven deadly sins would be asked to leave”

    I am reminded of the time a few years back when the headmaster of a Christian private school cuckolded one of his teachers by taking up with the teacher’s wife, who was also a teacher at the school. The headmaster did not ask himself to leave.

  44. I think it should be illegal for schools to promote any type of religious nonsense, including the belief in hell, as it is a form of child abuse.
    The conservative Christian schools nottrampis speaks of should be seized by the state and the god-bothering principals and teachers exiled to the Australian Antarctic Territory, where they try their luck at converting the seals and penguins to their brand of superstitious tomfoolery.

  45. Hugo

    alas, section 116 of the Constitution prohibits the Commonwealth from making any law “prohibiting the free exercise of any religion”, so you’re idea is a non-starter.

    Besides which, a small amount of religious education for children works like the MMR vaccine. There’s some minimal discomfort but it innoculates them for life.

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