Terry O'Gorman, AM

The addresses by Stefo and Elena which have just preceded my presentation neatly demonstrate the problems of censorship at community-based theatre level and in the alternative publishing field. The fact that the attempted gagging of the production of The Essentials and the exclusion of Gibber magazine from juvenile detention centres occurred in Victoria and Western Australia respectively reflects the intolerance which is characteristic of the conservative governments in those states.

When I heard Stefo and Elena detail their respective experiences as a Queenslander I was taken back to the prevailing attitude of intolerance which existed here in the seventies and eighties under the Bjelke-Petersen government. The political similarities between Queensland in the seventies and eighties and Victoria and Western Australia today help to explain the sense of difficulties experienced by the play The Essentials and the Gibber magazine. In making this observation I am not delivering a pitch for the Labor Party as against the Liberal and National Parties as this would be far too simplistic and tends to ignore the intolerance and consequent censorship pressures which can exist under some state Labor governments in Australia.

It should be remembered that the hardening of attitudes and the consequential tougher line taken on juvenile justice in WA which the Gibber magazine has had recently to contend with was in evidence in WA under Labor prior to the current Court government coming to power. The harsh juvenile justice regime which has emboldened the bureaucrats in the WA juvenile justice system in their dealing with Gibber magazine came to public focus in the later stages of the Labor government's reign in Western Australia.

The censorship of a magazine operating within a juvenile gaol - and let's face it, that's what these detention centres are, they're gaols dressed up in a nicer name - the censorship of a magazine operating within a juvenile gaol set-up reflects the scapegoating of many teenagers which has seen calls for teenagers to be treated as adults in the criminal justice system.

What has happened with Gibber magazine in WA would surely occur here in Queensland if such a magazine were to circulate within Queensland's juvenile justice system. Those of you at this conference who have come to Queensland only have to go to the street outside to see Brisbane City Council buses featuring stark advertisements warning teenagers that they will do adult time for juvenile crime. The experience of those responsible for producing The Essentials reflects the intolerant political environment in Victoria under the Kennett government.

It is trite to observe that the political environment sharply shapes the censorship debate at any particular period. Victoria and Western Australia have current political systems which are hostile to those who question the prevailing ethos. In Victoria particularly, accountability mechanisms, such as freedom of information and the role of the auditor-general in keeping government expenditure under ethical review, are both under significant attack of freedom of information in that state. Therefore, the censorship difficulties so clearly outlined in this conference by Stefo and Elena very much reflect the political environment operating in Victoria and Western Australia.

When a state government clearly signals that it is irritated by long-standing accountability mechanisms, such as freedom of information and the supervision by the auditor-general, it is but the next step for state governments of this ilk to attempt to make life very difficult for individuals and community groups who seek to take on the government, even in a relatively non-confrontational manner. The climate of fear which is generated by state government's obvious intolerance to accountability mechanism inevitably leads to timidity and self-censorship further down the line.

This process was very starkly demonstrated in the royal commission which led to the demise of two decades of intolerance in Queensland, the Fitzgerald Inquiry, which sat publicly here from 1987 to 1989. While the Fitzgerald Inquiry headlines concentrated on corrupt police, including a corrupt police commissioner, and highly suspicious personal transactions between government ministers of the day and the police and business political favourites, the less well-known issues of the Fitzgerald Report discuss the effect of an intolerant political regime on the ability of the individual to engage in freedom of expression.

The following comments made in the Fitzgerald Report as to criticism and dissent are directly relevant to the current concerns about censorship, particularly when censorship takes the form of the withdrawal of funding for a play or preventing a young peoples centred publication from circulating in a juvenile gaol. The Fitzgerald Royal Commission Report said:

Apart from the established institutions of a parliamentary democracy, informal methods of dissent are useful mechanisms for checking the abuse of power by governments. Dissent may also foster and promote public policies and legislation not previously considered by a government or bureaucracy.

In the past, when church and other community leaders, including academics, have expressed independent concerns with respect to public issues in Queensland, their comments frequently [the Fitzgerald Report noted] have been rebuffed by a barrage of propaganda and personal abuse.

The Fitzgerald Report went on to note, and this could equally apply, to Western Australia:

Many persons of ordinary sensitivity who have not been hardened by experience in public life are effectively deterred by such invocators from valuable participation in public affairs. People of differing opinions have the right to express those opinions and to act peacefully to bring their arguments to the attention of the wider community.

The gagging of the production The Essentials in Melbourne in 1996 forcefully shows the destructive and chilling effect which the threat of defamation can have on a controversial publication, which is dependent, by way of funding or provision of facilities, to stage the production on state or local government assistance.

The Fitzgerald Inquiry referred to the chilling effect which the threat of defamation action has on the ordinary citizen's ability to carry out peaceful, but active, political dissent. It said:

The right to voice dissent from the opinion of the government and its manner of decision-making are no less important for parliamentarians or the established opposition or opposition parties. A parliamentarian's role to review and constructively criticise government activity could be hampered by being inhibited from speaking out publicly by threats of claims for damages. This is particularly so if the defamation actions which result are funded out of the public purse.

The use of public resources, at any time or in any way, to inhibit or suppress the expression of opposing political opinion or a criticism of any administration [the Fitzgerald point noted] is wholly objectionable. Those in public life must accept the risk of criticism, even if it is at times unfair, unfounded or even mischievous and even if it is couched in unflattering or even abusive language. While personal abuse and wrong allegations are to be condemned, they do not justify the use of public resources to provide legal redress for individual members.

The Fitzgerald Report went on to note:

There are ample opportunities for criticisms or allegations to be addressed at a political level, in a parliament and by public statement. An elected representative's response to or treatment of wrong or unfair allegations is, itself, a yardstick for that representative's suitability and aptitude for the role. If politicians' public statements are wrong or misconceived or mischievous or malevolent, that should be demonstrated in public exchange. The politicians and their parties will suffer the political consequences. That is the only detriment which would normally be involved, criminal offences excepted.

If members of parliament [the Fitzgerald Report noted], including ministers, choose to resort to legal redress, it should be at their own cost, just as any damages recovered would be to their personal material gain.

The decision imposed on The Essentials by the decision of the councillors of the City of Port Phillip, by withdrawing The Gasworks Theatre, was said to be rooted in concerns by the Port Phillip Council that the play was defamatory. This is a neat illustration of how the law of defamation and the ever-present threat by politicians to sue in that area causes self-censorship, by fear of having to defend a defamation action.

The experience of those involved in the production of The Essentials highlights the importance of non-commercial and non-mainstream production companies to take proactive steps to protect themselves, as much as can be done, from defamation action. As a first step, a production needs to ensure from the beginning that competent, and I stress "competent", legal advice, by lawyers experienced in the specialist area of defamation, is available from the outset.

If a production thinks first of obtaining defamation advice only when a threat to sue for defamation is made, the strength of purpose and relative feeling of security that can come from planning well in advance in respect of a threatened suit for defamation gives way to panic and, in consequence, significant distraction from the demanding efforts required of a performer to work towards opening night.

Similarly, early and specialist legal advice needs to be obtained in order that the financial affairs, of those who may have to pay out in the event of a successful defamation action, of those persons is structured in a way so as to ensure that there are no assets available for execution on a successful defamation judgment.

I want to look at what happened to The Essentials and Gibber magazine in the context of recent history of censorship. Those involved in producing plays such as The Essentials and publications such as Gibber magazine need to have some sense of recent history of censorship, in order to understand that censorship, like law and order, undergoes the pendulum phenomenon. From time to time, the pendulum swings very much to the extreme position, harmful to freedom of speech. Most times, the knowledge of how previous censorship battles have been fought will give some perspective to those involved in a particular current struggle.

An American civil liberties union briefing paper gives a useful summary of the history of censorship and freedom of expression in the United States, and that is a country, which, by virtue of its bill of rights, supposedly, gives greater protection to freedom of expression than a country, such as Australia, which does not have a bill of rights.

Freedom of speech of the press, of association, of assembly and of petition, those sets of guarantees are protected in the first amendment to the American Constitution, or the first article of the Bill of Rights, comprising what is known in the United States as "freedom of expression". The Supreme Court in the United States has written that this freedom is the matrix, the indispensable condition of nearly every other form of freedom; without it, other fundamental rights, like the right to vote, would wither and die.

But, in spite of its preferred position in the American constitutional hierarchy, the American nationšs commitment to freedom of expression has been tested over and over again, especially during times of national stress, like war abroad or social upheaval at home. People exercising their first amendment rights have been censored, fined or even gaoled. Those with unpopular political ideas have always borne the brunt of government repression.

It was during World War I, hardly ancient history, that a person could be gaoled in the United States, and similar events happened here, for giving out anti war leaflets. Out of those early cases, modern first amendment law evolved. Many struggles and many cases later, it is said that the United States is supposed to be the most speech protective country in the world but the path to freedom in the United States, as the American Civil Liberties Union experience has shown, has been long and arduous. It took nearly 200 years to establish firm constitutional limits on the government's power to punish seditious and so-called subversive speech.

Many people suffered along the way, such as: Labor leader, Eugene Debs, who was sentenced to 10 years in prison, under the Espionage Act, just for telling a rally of peaceful workers to realise that they were "fit for something better than slavery and cannon fodder"; or Sidney Street, who was gaoled in 1969 for burning an American flag on a Harlem street corner, to protest the shooting of civil rights figure, James Meredith.

I'm conscious of the time constraint and the request to finish this speech by 6 o'clock, so I might skip some parts of the prepared paper and move to, particularly, what cases in the United States have said that protected speech includes.

First amendment protection is not limited to pure speech, that is, books, newspaper, leaflets and rallies. It also protects symbolic speech, non-verbal expression, whose purpose is to communicate ideas. In its 1969 decision in Ticknor, the United States Supreme Court recognised the right of public school students to wear black arm bands in protest at the Vietnam War. In 1989, in the decision of Texas v Johnston; and again, in 1990, in the decision in Eichmann, the court struck down government bans on so-called flag desecration.

Other examples of protected symbolic speech include works of art, T-shirt slogan, political buttons, music lyrics and theatrical performances. Government can limit some protected speech by imposing time, place and manner restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations but a permit cannot be unreasonably withheld, nor can it be denied on the basis of content of speech.

I want to look at what has occurred both in the United States and, more recently, in Australia, in the aspect of freedom of speech for hatemongers. The American Civil Liberties Union and, more recently, the Australian Council for Civil Liberties in this country have often been at the centre controversy, for defending the free speech rights of groups that spew hate, such as the Klu Klux Klan and the Nazis, but if only popular ideas were protected, then freedom of speech and a bill of rights to protect the right to freedom of speech would not be needed.

History teaches that the first target of government repression is never the last. If we do not come to the defence of the free speech rights of the most unpopular amongst us, even if those views are antithetical to the very freedom that the first amendment and similar rights of freedom of speech in Australia stands for, then no-one's liberty will be secure.

Therefore, the position taken by the Australian Council for Civil Liberties mirrors that of the American Civil Liberties Union in relation to the so-called hate speech. It is the position of the Australian Council for Civil Liberties that censuring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate, racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge in the United States has said, tolerating hateful speech is the best protection we have against any Nazi regime in this country.

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses or even threatens another person, even if mere words are used. So that, threatening phone calls, for example, are not constitutionally protected.

I want to skip a bit more of the prepared paper and look particularly at some concerns that I have as to the freedom of speech consequences, including, in relation to artists, what I describe or particularly what the American Civil Liberties Union President describes as "the dangerous alliance between conservative fundamentalists and anti pornography feminists".

Nadine Strossan is President of the American Civil Liberties Union and is also professor of law at New York Law School. In an important publication entitled, Defending Pornography, Free Speech, Sex and Fight for Women's Rights, Strossan notes, in her 1995 book:

In the past decade some feminists have dramatically altered the long-standing debate in this country about sex and sexually-oriented expression. Liberals, including those who advocated women's rights, had long sought increased individual freedom and decreased government control in the realm of sexuality. Accordingly, liberals had urged the repeal both of laws restricting consensual private sexual conduct between adults and laws restricting the production of or access to sexually-oriented materials, including books, films and photographs. Conversely, conservatives, including those who opposed women's rights causes, had consistently advocated strict government control over both sexual conduct and sexual expression.

With the 1980 election of Ronald Reagan and the growing mobilisation of the so-called religious right, what had become a conservative clamour gained enormous political clout.

The Australian Civil Liberties Council maintains the same thing is now happening in Australia, as a result of the very conservative election of the Howard government. Strossan noted that:

It led to the 1986 report of Nice Pornography Commission, which, in turn, led to sweeping new law enforcement crackdown on all manner of sexual materials, including popular, constitutionally protected works, such as The Joy of Sex, and Playboy magazine.

She notes that:

The startling new development in the United States is that, since the 70s, the traditional conservative and fundamentalist advocates of tighter legal restrictions on sexual expression have been joined by an increasingly vocal and influential segment of the feminist movement.

She notes that:

Both groups now target the sexual material they would like to curb with the pejorative label "pornography".

Strossan notes the extent to which politically correctness, particularly in the area of sexual harassment, has curbed and affected freedom of speech, particularly freedom of expression, including artistic freedom of expression, in the United States. I have particularly extracted what she has said in her recent book in my paper, to indicate that the Australian Council for Civil Liberties sees the same problem emerging in this country.

She notes the extent to which political correctness, particularly in the area of sexual harassment, has reached in the United States. She notes that, in 1994, Chicago Theological Seminary professor, Graydon Schneider, an ordained minister, was severely disciplined merely for citing a lesson from the Talmud, the compendium of Jewish law, during a religion class. The lesson centres around a story about a man who falls off a roof, lands on a woman and accidentally has intercourse with her. The Talmud comments that the man is innocent because the act was unintentional.

For 30 years, Strossan, who is, as I would note, a woman, professor of law and also, obviously, a civil libertarian, notes that for 30 years Schneider has used this lesson as a springboard for discussing Jewish and Christian concepts of responsibility, guilt and sin, but when he did so in 1994 a female student filed a sexual harassment charge against him. In response, the seminary where he taught issued a formal reprimand and put notices in the mailboxes of every student and teacher at the school, telling them that Dr Schneider had engaged in sexual harassment. Although Schneider was allowed to continue teaching, he has to endure the further dignity of being visibly monitored by a school official who sits near him in the classroom, with a tape-recorder, a kind of word cop, according to The New York Times.

To attempt to conclude, Strossan notes it is essential to derail the traditionalist, feminist, anti sex juggernaut before it impacts on public perception and public policy becomes even more devastating. She notes that this juggernaut poses a great danger to free speech about sex, which is central to a range of urgent current concerns: abortion, contraception, other aspects of reproduction, gender roles, sexism, sexual orientation and sexually transmissible diseases. In addition, she argues, the conservative, feminist drive to suppress sexual expression threatens the movement for women's equality, since that movement depends on robust free expression, particularly in the area of sexuality, which historically has been a focal point in defining and limiting women's societal and legal status.

I argue in the paper that a similar alliance between conservative and pro-censorship feminists has very definitely emerged in Australia. The various attacks on R and X-rated movies by the Lions forum has the support of pro-censorship feminists.

Catherine Lunby, a columnist for The Sydney Morning Herald, who teaches media law at Macquarie University, recently noted in an article in The Sydney Morning Herald in August 1997 that the federal government's proposal for the proposed new non-violence erotica rating, a tightening of the X rating, is the latest in a long line of bizarre attempts to regulate Australiašs sexual fantasies.

Senator Harradine earlier this year described the federal government's proposed non-violent erotica classification as a deceitful con. He asserted that the federal government was trying to get out of an election promise to ban X-rated videos by replacing the X category with the new non-violent erotica category but claimed that the proposal would mean little change.

I simply want to quote two other people, both Victorians.

Joseph O'Reilly, the executive director of liberty, the Victorian Council for Civil Liberties, notes that:

The implication of the federal court ban in relation to a Victorian student newspaper publication dealing with shoplifting are grave. The proposals in the Classification Act are too broad and serve no useful purpose. Charging the editors of the student newspaper for publishing an article on shoplifting protects no-one or their property.

Finally, Padraic McGuinness, hardly a defender of civil liberties, let alone a supporter of the Australian Civil Liberties Council, complained in an article in The Age on 6 February 1997:

Film and other censorship is on the agenda once again. The romanticists of the right are combining with the blue collar populace to push for a stricter censorship than we have known for years, and they are getting a hearing from those in the government who are also of an authoritarian bent.

In conclusion, when one looks at what has happened to The Essentials, when one looks at what has happened to the Gibber magazine, one is looking at not only censorship by conservative governments, whether they are conservative tory government or conservative Labor government, one also has to have a look, at least this is the argument of the Australian Council for Civil Liberties, at the increasing repressive censorship which is occurring in Australia, as a result of the unholy alliance which has emerged between conservative politicians and pro-censorship feminists. That unholy alliance has led to a latter-day crackdown on censorship, the like of which we haven't seen for a long time, but it has led to a quietening of criticism of that crackdown, because part of the opponents of free censorship fights have now joined the fight in favour of censorship. Thank you very much.

Back: Elena Jeffreys