Reclaim freedom

By Fatima Measham
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15 minute read

Freedom in Australia is framed around a fixation on free speech. If we were to take our cue from self-designated freedom experts, an unqualified right to express ourselves is the sum total of what it means to be free.

The inordinate attention paid to Section 18C of the Racial Discrimination Act (RDA) is demonstrative. The law deals with public acts that are reasonably likely to offend, insult, humiliate and intimidate a person or group of people on the basis of race, nationality or ethnicity. Its place in a multicultural society is unremarkable, or at least it used to be.

It is always worth reminding ourselves how changing this law came to be a right-wing priority. In September 2011, the Federal Court found that columnist Andrew Bolt had breached the law in two articles that implied light-skinned Aboriginal Australians, whom he named, identify as Aboriginal for personal gain. Justice Mordecai Bromberg found that these articles did not satisfy section 18D provisions on good faith, fair comment and public interest.

Conservatives deemed this decision deeply unsatisfactory. In November 2013, only two months after winning the federal election, the Coalition moved to repeal section 18C. Then-Prime Minister Tony Abbott and Attorney-General George Brandis insisted that the terms “offend”, “insult” and “humiliate” should be struck from the law. “People do have a right to be bigots,” Brandis argued. He appointed Tim Wilson, then a policy director at the Institute of Public Affairs (IPA), to the Australian Human Rights Commission. In Wilson’s first major speech as commissioner the following year, he described 18C as “democratically dangerous” and that the RDA “violates human rights and must be fixed”.

The backlash indicated that many Australians disagreed. More than 76 per cent of submissions to parliament rejected the proposal. The reaction from ethnic communities was so severe that a number of Coalition backbenchers from multicultural electorates baulked. The idea was buried in August 2014.

Free speech is an instrument to be wielded from below. To invoke it from a position of power is to pervert it.

Like all zombie ideas, it refuses to stay dead. The RDA is again a target for the right-wing spectrum now embodied in the senate by David Leyonhjelm (Liberal Democrats), Cory Bernardi (Liberal), James Paterson (Liberal, formerly also of the IPA), Derryn Hinch (Derryn Hinch’s Justice Party), Malcolm Roberts and Pauline Hanson (both of Pauline Hanson’s One Nation). In November 2016, Attorney-General Brandis convened a parliamentary inquiry related to freedom of speech, involving Part IIA of the RDA as well as the complaints process under the Australian Human Rights Commission. The report is due in February 2017.

This has carried on for more than five years. Not much else has drawn sustained political energy, despite how the intellectual provenance of free speech has nothing to do with being exempt from critique or providing redress.

It was a right articulated early in the development of modern democracy, such as the United States Bill of Rights and the French Declaration of the Rights of Man and of the Citizen. That is to say, free speech is an instrument to be wielded from below. To invoke it from a position of power is to pervert it.

I first had inkling of its potency when I was a little girl. I grew up in the Philippine south in the 1980s. By the time I was in fourth grade, Ferdinand Marcos and his family had been in power for 20 years, and looked unwilling to loosen their grip. Martial law, imposed for nearly 10 of those years, had been lifted – but the damage it wrought was thorough.

Marcos made himself concurrent president and prime minister, abolished Congress, politicised the military, detained political opponents and student activists, tightened control over the press, sequestered corporations for distribution among his cronies, and accrued personal wealth even as the national debt grew.

The bubble of childhood insulated my sister and me from most of the political conflict. Still, I remember mum telling us to bury two T-shirts deep in our wardrobe. A neighbour had been running a little sideline, stencilling political slogans in red on white tops, and mum gave us cash to have ours done. It struck me as odd that when we came home with them, she told us that they were not to be worn. Perhaps she had second thoughts about exposing our allegiance.

One T-shirt bore the face of opposition leader Benigno “Ninoy” Aquino Jr and a paraphrase of words he had uttered not long before assassination: “The Filipino is worth dying for”. A few weeks later, mum finally told us we could wear them. On television, the scenes at Malacañan Palace were jubilant and chaotic, people streaming undeterred into the presidential residence. We later learned that the United States had flown the dictator to Hawaii, where he would live in exile until death.

The texture of martial law became more apparent when I was older. I heard about the time an uncle abandoned his plan to attend a rally at the plaza, opting for the cool confines of the cinema instead. Rumours later emerged that undercover police had taken photos at the protest. It is a matter of speculation whether my uncle would have remained safe had he attended, but we do know it took little pretext for people to be detained. Fred Gapuz, a family friend and activist lawyer, was twice arrested for speaking out and organising strikes. He was tortured. Another vocal opposition leader, Aquilino Pimentel Jr, was routinely detained for months on spurious charges (such as giving 100 pesos to a communist). I also found out that my mum and her friend once got caught jaywalking, for which they were taken to the local army base for reprimand. Under Marcos’ New Society vision, order must reign supreme.

By one calculation there were over 3,000 extra-judicial executions during the regime, an estimated 35,000 tortured, 7,000 imprisoned and 700 vanished. Many in the first waves of arrest were students, journalists and members of the political opposition. These are textbook features of dictatorships: quash dissent, control information and cultivate distrust between citizens.

One of my friends from university harbours childhood memories of visiting his father in detention and moving from place to place with his mother to evade the attention of government forces. A number of our alumni who were activists at the time perished, including the poet Eman Lacaba who was shot twice at close range, tied by the ankles and dumped in a mass grave.

This is how my understanding of freedom was honed, including political freedoms. Naturally, I find it repulsive when racist provocateurs in Australia bleat free speech. What do they really know about what it means to not be able to move, assemble and speak without risk? What do they know about putting their body on the line, so others can be free?

Andrew Bolt and his supporters still regard the 2011 Federal Court decision against him as an assault on free speech, despite Justice Bromberg’s findings that a level of malpractice was involved. In the ensuing years, AFL veteran Adam Goodes endured a crescendo of boos for refusing to absorb a racist epithet. Cartoonist Bill Leak has become increasingly recalcitrant in his hideous representations of minorities. Blackface remains a staple at dress-up parties.

Freedom warriors in Australia can argue that ideas are also a marketplace, but the standard currency there is bigotry. They embody the “tyranny of the majority” that concerned John Stuart Mill, one of the key proponents of liberalism. Where the state duplicates the dominance of particular groups, it becomes an instrument of harm.

Mill argued therefore that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”. Unfortunately, in the case of free speech, it is more convenient for those in power to bypass such calculations. They prefer to speak of the right to cause offence, rather than the need to avert harm. They look past the link between rhetorical violence and physical violence.

It is no coincidence that in the week after Donald Trump won the US presidency, calls to mental health hotlines spiked across the country, with most callers citing the election result. These people aren’t imagining things. The post-election surge in hateful harassment and intimidation, including neo-Nazi vandalism, illustrate the permissions that have been engendered. Eighteen cities, including Chicago, New York and San Francisco, have had to iterate their status as sanctuary cities.

Meanwhile in the UK, a man was found guilty of murdering Labour MP Jo Cox in the week before the Brexit referendum. Several witnesses heard him repeatedly say “Britain First” as he shot and stabbed her. It recalls to some degree the assassination of Israeli Prime Minister Yitzhak Rabin, who died in a political climate where he was depicted as a traitor for entering peace negotiations with the Palestinian Liberation Organisation. “After his murder, politicians were quick to condemn the assassin as a lone wolf,” his son Yuval wrote recently, as he reflected on the US presidential campaign. “They conveniently ignored their role in creating a poisoned environment that led someone to believe that taking a life was a justifiable political act.”

We hear echoes in accounts of genocide. In Rwanda, racist propaganda on the radio spurred some of the violence in 1994. These are extreme examples but they demonstrate that harm cannot always be easily dismissed as a matter of “hurt feelings”. Violence is a continuum.

Linguistic anthropologists have also found that there are links between language and social inequalities, via processes such as “turn-taking” and “validating”. Who gets to have a turn to speak? What do they speak about? How much value is given to their speech?

The answers to such questions often reveal social hierarchies and reinforce structures of control. These enforced hierarchies become manifest in policy, affecting real lives. A doctrine of individual responsibility, for instance, is deployed to justify welfare cuts. Conspiracy theories around Muslims and queer Australians are propagated to push for discrimination.

The containment of power – one of the theoretical foundations for freedom – has been eroded with little discernible outrage from freedom warriors.

It is in places where forms of expression challenge structures of control that we see how free speech actually functions within the broader framework of freedom. Exposing injustice and corruption can lead to prison and torture for artists and journalists around the world, including in Azerbaijan, Burundi, Egypt, Thailand and Turkey.

In Australia, journalists and whistle-blowers were targeted in amendments to counter-terrorism laws in 2014. Legislation was passed last year to deter workers in the immigration system from leaking accounts of detention abuse. There are also persistent efforts to mute public servants, with the ACT government recently proposing legislative prohibition against comments that might cause reputational damage to the government. The explanatory note raises questions about the boundaries between the citizen and the state: “The need to retain public confidence in the public service outweighs any impingement on an individual’s right to privacy, freedom of expression or participation in democratic processes”.

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The containment of power – one of the theoretical foundations for freedom – has been eroded with little discernible outrage from freedom warriors. This is what happens when freedom is singularly pitched as the absence of interference; it gets co-opted.

Such co-option relies on optimistic assumptions. First, that humans are rational creatures. John Locke, the 17th century English political theorist, started from the idea that people are reasonable, independent and tolerant. Their pursuit of happiness is benign.

The second assumption is that equality is intrinsic, rather than a social condition. Jeremy Bentham, the 18th century English philosopher who founded utilitarianism, made no distinction between individuals based on wealth. His moral arithmetic, the greatest happiness for the greatest number, means that the happiness of those with most wealth is equal in weight to those with least.

In both frameworks, unconditional freedom sort of makes sense. Everyone being able to pursue their self-interest leads to a lot of satisfied people. Freedom becomes a mechanism for distilling the common good. That is, if we take happiness or utility to be an accurate measure of the common good.

These are brittle premises, not least because they are superficially connected to reality. People are not rational. They are prone to tribal affinities and conformity. They distort risk, avoid loss and prefer instant gratification. They tend to shape reality around their worldview, rather than the other way around. Such anarchic conditions serve only those who can withstand imbalances or gain from it.

It is why restraints are codified in law. Equality is not the default social condition, inequality is. The longitudinal Household, Income and Labour Dynamics in Australia (HILDA) Survey recently found that median household income and wealth have stagnated over the past 10 years, and home ownership rates slipped 3.3 per cent, suggesting that recovery from the global financial crisis has been uneven.

It manifests as a generational gap. Apart from those 55 years and older, home ownership for all age groups declined. Median wealth grew the most – by 61 per cent – for Australians aged 65+, while those aged 25 to 34 budged up 3.2 per cent. The gender wage gap is also palpable, with the weekly wage for employed women 22 per cent lower than men with the same years of work experience.

Some segments of society are not doing even as well as this. A third of single parents rely on welfare; the poverty rate for children in single-parent households persists at more than 20 per cent. The national rate of homelessness rose 17 per cent between 2006 and 2011, and has anecdotally worsened since, with funding cuts to support services becoming conspicuous in cities like Melbourne. The class divide is almost Dickensian: Australians in their 40s with fewer than 12 years of education have a 70 per cent higher mortality rate than the most educated.

The inequities between Indigenous and non-Indigenous Australians are particularly stark. Aboriginal men and women are respectively six and 11 times more likely to die of heart disease compared to their non-Aboriginal counterparts. The incidence of end-stage chronic disease for Indigenous people in remote areas can be 20 times higher than non-Indigenous Australians. These and other medical conditions, along with seldom diagnosed or treated cognitive and mental health problems, intersect with high rates of incarceration. Indigenous life expectancy is 11 years shorter than non-Indigenous.

Inequality patently limits the choices for those on the margins: a verifiable state of un-freedom. What options are available for an Aboriginal boy with foetal alcohol spectrum disorder when he encounters the criminal justice system? What options are available for a mother with limited qualifications and poor mental health who wants to leave an abusive partner? What options are there for a non-union convenience store worker or seasonal fruit-picker who is being underpaid?

Freedom means nothing without justice.

There are forms of entrapment, such as intergenerational poverty and racial discrimination, which expose the inadequacy of the freedom described in earnest by those in power. Freedom to do things – making objectionable remarks against minorities or accumulating wealth regardless of social and environmental costs – is an insult to people pursuing freedom from things like destitution and debilitation. Freedom means nothing without justice.

African-American history indicates as much. When Abraham Lincoln proclaimed the emancipation of slaves, freedom was only part of the story. The absence of slavery required further guarantees, given post-Civil War intransigence in the south. These came in the form of Reconstruction laws.

The Thirteenth Amendment to the Constitution and the 1866 Civil Rights Act brought former slaves into the fold of citizenry. The Fourteenth Amendment was crafted to secure their rights: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. This amendment would become the basis for suits in the Supreme Court which are now familiar to us: Roe v. Wade, Brown v. Board of Education, Loving v. Virginia and Obergefell v. Hodges.

To belabour the point, the legal foundation for some of the pivotal cases that secured modern rights in the US – women’s bodily autonomy, racial desegregation and marriage equality – is tied to black history, to the experience of slaves and the transition to freedom. It is tied to their ongoing fight against political disenfranchisement and police brutality. In other words, there is far more to freedom than speech.

White, suited people in think-tanks do not get to monopolise what freedom means. When we let them, delineating different kinds of freedom turns into an exercise in irony. Those who invoke the right to free speech have multiple, paid platforms and eager audiences. Those who assert property rights have material in excess of what is held as commons such as land, water and air. Those who have never clung to welfare for survival dismiss it as statism. Those whose prosperity is secured by public infrastructure regard taxation as theft. Those who would claim their right to due process think nothing of depriving others of such liberties.

The people who take up the cudgels for freedom could hardly be described as un-free. If we were to count on them for an understanding of the human condition, things like dignity and interdependence, we would glean very little. The incongruities get in the way.

One view that is not entirely useless is that limited government is a precondition for freedom. Calls for restraint are justified in cases of state overreach, such as the Northern Territory intervention, marriage discrimination, data retention and indefinite detention. The state arguably crosses the line when the agency of entire, non-hostile groups is compromised, with little review or recourse.

This suggests that the burden of restraint lies with government, given the power it holds. But the line is also reinforced by citizens via protest, elections, organising and lawsuits. The extent of our freedom relies on maintaining that tension between us and the state. As legal academic Kate Galloway pointed out in a piece on census scepticism, the state benefits from the erosion of boundaries, which happens when compliance is normalised.

Revolutions have historically disrupted this dynamic. In the 18th century, corrections were made against the excesses of the monarchy and the church. During this transition, some political foundations were developed: rule by consent, representative democracy, separation of powers, rule of law and equality before the law, and individual autonomy and the social contract.

But ongoing civil rights struggles complicate the narrative that government in itself is bad by default and ought to be limited. The interference of national governments, rather than an obstruction to freedom, is sometimes the only concrete means by which marginalised groups can claim and preserve their liberties. This speaks to the nuances that are lost when a zero-sum approach to freedom is adopted; it ignores imbalances of power at the expense of those who have little of it.

Those who push for a smaller size of government actually have ample means to be able to withstand its reach. Those already on the margins suffer from its withdrawal. The key question is not whether governments should intervene but whose side it is on.

The character of interference matters. Who benefits, who is able to bear the cost, what inequities are perpetuated, the ramifications for not acting – these and many other questions are worth discussing, perhaps more than whether someone is permitted to do things.

The Central and South American experience is illuminating. In the decades post-World War II, political upheavals in countries like Argentina, Brazil, Chile and El Salvador rendered populations vulnerable to various forms of abuse. The hallmarks of regimes – restrictions on free speech and political opposition, police brutality and suspension of habeas corpus – were justified on national security grounds or as anti-Communist measures. It was a standard template for the period, aided in part by US foreign policy.

The rise of the police-state coincided with the beginnings of industrialisation and global trade, which benefited the landed upper-class but marginalised other sections of society. The effects on campesinos (peasants), labourers and the urban poor compelled some Catholic leaders to drastically rethink what it means to be a Christian church. The Catholic Church was a colonising force in this part of the world, and therefore implicated in structures of power.

In 1968 Gustavo Gutierrez, a Peruvian Dominican priest, wrote the seminal paper Towards a Theology of Liberation. He was an adviser to the Latin American Bishops’ Conference in Medellin, Colombia, which subsequently articulated “a preferential option for the poor”. The phrase is one of the founding tenets of liberation theology.

Gutierrez, who was treated with some contempt by the Vatican at the time, overhauled Catholic language in a way that compelled active engagement at the grassroots. The concept of sin – a departure from the will of God – was expanded to include injustice. Poverty was reframed as the result of how societies are built, from laws and organisations to culture. This meant that salvation was not just personal but social. The concept of human dignity had limited relevance otherwise; what would be the point of upholding the intrinsic, God-given worth of each individual under material circumstances that were humiliating?

Other figures in the development of liberation theology dwelt on violence and its institutional characteristics. Helder Camara, a Brazilian archbishop, referred to violence as a spiral: primary violence in the form of structural injustice, followed by resistance from the oppressed, which is then subdued by the powerful. Another Brazilian, Franciscan priest Leonardo Boff, wrote: “Originating violence has its roots in the elite institutions of power, in a social structure that protects the interests of the dominant groups, and in the extreme right, which will not tolerate any social change out of fear of losing its privileged status.”

Liberation theology thus intersects with Enlightenment political theory (embodied in part by Mill, Locke and Bentham) in its critique of the state and its apparatus. It prioritises the view “from below”. But it departs on three important points:

  • It acknowledges that bigotry, poverty and violence are threats to freedom. Freedom warriors seldom examine these with the same enthusiasm that they extol free speech and free markets. It bears pondering why.
  • Liberation theology uses the language of dignity and justice not just freedom. It speaks beyond individual agency to promote subsidiarity (local groups solving their own problems) and solidarity (not mere compassion but a commitment to end oppression).
  • Its critique of the state is for its own sake, to reconcile the state with its function. The verb form “liberate” becomes significant, deepening freedom from the shallows of passive liberties or privileges, where people are merely allowed to do things. It forces us to notice the ways people lack choice even in societies that seem free. It turns freedom from an inward state into an outward challenge: who is not as free? Why?

White, suited people in think-tanks do not get to monopolise what freedom means.

For nuns and clergy in Latin America in the second half of the century, as well as those in the Philippines under Marcos, the answer to “who is not as free?” clarified whose side they were supposed to be on. It also threw into sharp relief the contours of freedom, not just as emancipation from an excessive state, but from living conditions that degrade and entrap people.

Civil liberties actually have limited value in developing an understanding of social problems and their solutions. Free speech for all has not been shown to make Muslims in the west more free (it has arguably done the opposite). The right to privacy does not mean much to someone who is sleeping rough. Freedom of movement is a different experience for refugees and those who collect frequent flyer points.

The concept of property has facilitated slavery, indigenous dispossession, colonial plunder and environmental degradation. The speculative banking practices and toxic mortgages that led in part to the global recession occurred under free market principles, one of which is minimum state oversight.

In other words, no two freedoms are the same. People are born and raised under a variety of circumstances that either maximise or minimise their range of choices. It is disingenuous – and harmful – to presume that there is no difference in degrees of vulnerability across groups. Could anyone really argue that an Aboriginal girl born in Alice Springs has access to the same things as someone growing up in the inner suburbs of Melbourne?

Freedom in Australia has been distorted to such a degree that it no longer offers insight into how to govern. We have let privileged ideologues monopolise the terms of discourse for far too long. We would need to restore the meaning of freedom as containment of power. We would need to attach it more securely to social justice. We would need to assert the function of the state as the means by which people may be liberated from indignities.

This is how we can begin to reclaim freedom. It is overdue.

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