OPINION | Isreal Folau going to hell for free speech

OPINION

Crispin Hull

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Rugby Australia is doing more damage to its own reputation by the bullying and intimidation of its employee-contractor Israel Folau over the expression of his religious beliefs than Folau’s original over-the-top expression of those beliefs.

The case was one of several in recent weeks that have tested the way institutions in Australia deal with the question of freedom of speech.

We should not lose sight of the importance of freedom of speech however much social media foghorns and pushes people and the main stream media towards extremes in order to gain attention in an environment where anyone can easily and cheaply publish to the world.

It means we have to protect freedom of the speech we disagree with, even if it is distasteful or wrong-headed.

The test for gagging is not whether the speech is false, wrong-headed or distasteful, but whether it does harm.

Corporations and institutions are applying ever more restrictions on their employees in the face of the easy-publication environment of the internet with its flow on influence to mainstream media. They fear their reputations are at greater risk.

Rugby Australia is a good example. But its treatment of Folau is mired in hypocrisy.

Folau’s tweet is worth analyzing. He wrote: “Warning. Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolators. Hell awaits you. Repent! Only Jesus saves."

Rugby Australia’s reaction was to issue him with a breach notice, saying that the tweet breached his contract. Alternatively, it might argue that he breached the standard player code of conduct by vilifying others because of their sexuality.

Rugby Australia said it was a “high-level” breach. It has asserted it is an inclusive organisation and Folau’s tweet was contrary to that.

But if you are to be inclusive, doesn’t that include fundamentalist Christians as well? What if a Muslim player had tweeted: “Warning. Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolators, Allah’s justice awaits you with a sword?”

These rantings do not cause harm. To the contrary Folau – however misguided – had the interests of homosexuals and atheists and others at heart. In his Christian world, he was trying to help them avoid the horrors of the eternal hellfire.

As an atheist, I do not take the slightest offence at Folau’s rant and do not feel vilified by it. Nor would I think any the less of Rugby Australia or the conduct of the sport of rugby if Rugby Australia had taken no action.

I just take pity on Folau that he has fallen into the grip of religious fundamentalism and does not have the intellect, education or emotional capacity to get out of it.

The better response would have been to ignore or laugh at the tweet. It has nothing to do with Folau’s rugby playing, which apparently is quite good.

Indeed, if Rugby Australia has a reputational risk it stems from some of the people on whom Folau urged repentance: drunken players engaging in sexual assaults and other violence. When an employee engages in that sort of criminal conduct outside the workplace an employer has every right to terminate the employment. In football, they are often merely counselled.

There is a conflict here between freedom of contract and employment law on one hand and freedom of speech on the other. The Folau case suggests that freedom of contract and employment law are getting an unfair upper hand.

The Geoffrey Rush defamation case also suggests that freedom of speech is losing out. The 2006 defamation law reforms were supposed to cap damages for hurt feelings and loss of reputation to an indexed $260,000 (now about $400,000). The reforms were supposed to put defamation damages and personal-injury damages into some sort of perspective.

But judges have warped that intention, by adding “aggravated damages” to the $400,000. So Rush got $850,000. There are two things wrong with that.

Even if Rush had been awarded the top $400,000, it would mean he got $450,000 in aggravated damages. It seems illogical that the aggravation is worse than the original injury.

Further, the defamatory imputations were by no means the worse imaginable and therefore deserving of top damages, even if they were produced by the worst sort of journalism. Being called a paedophile, rapist and murderer would be worse than being accused of groping an actress.

It seems as if the judges have ignored the intent of the 2006 reforms and gone back to the horror days of huge intimidatory damages.

It is a shame that The Telegraph’s reckless, over-the-top, sensationalist journalism has now made it harder for responsible journalism as evidenced by The Sydney Morning Herald’s defamation loss to Chinese billionaire Chau Chak Wing in February.

Free speech and important public exposures have been so jeopardised by judicial handiwork that even the conservative Coalition Attorney-General Christian Porter thinks the defamation law will have to be revisited to make it fairer.

Further, the case had a lot of collateral damage. Women will be a lot more wary of reporting workplace incidents following the treatment of actress Eryn Jean Norvill in that case.

All this does not mean speech should be totally free. Two High Court cases on the freedom of political communication implied in the Constitution show how freedom of expression can be properly balanced against other rights.

In the abortion-clinics case, the court upheld state a territory legislation that prohibits anti-abortion protests within a certain distance of a clinic. The court said people’s legitimate political right to protest for a tightening of abortion laws could be exercised elsewhere so was not being denied. Whereas to allow the protests close to clinics jeopardised the rights of people seeking treatment.

In yet another case on political donations, the court has held that a Queensland ban on political donations by developers does not breach the freedom. It has not released reasons, but earlier cases suggest that anti-corruption measures are just as essential to the workings of representative government as freedom of speech and that developers would not be prevented from putting their political views in other ways.

Free speech (including protection for whistleblowers) and a free media are not absolutes, but if it too easily eroded society will not improve. Without them, for example, institutional abuse of children, financial institutions’ malfeasance, and a myriad of other maladies would never have been exposed because the proper authorities sat on their hands.


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