If Australian Prime Minister John Howard gets his way, citizens down under will soon face seven years in prison if they are convicted of "sedition." That's not entirely new–sedition laws have been on the country's books for at least 40 years–but the proposed legislation more than doubles the penalty. It also expands the definition of criminal speech to include "assist[ing], by any means whatever, an organisation or country…at war with the Commonwealth, whether or not the existence of a state of war has been declared."
What comprises such "assistance," and how on earth do you know when an organization is at "war with the Commonwealth" in the absence of a declaration to that effect? The answers are not clear, even after one very heated month of public debate and outcry.
"Taking the puff out of someone in a cartoon, or puncturing an ego in a play, is a vastly different proposition from encouraging impressionable young people to become suicide bombers, or inciting violence against our soldiers," Howard wrote in a November 28 Melbourne Herald Sun op-ed piece, during a week in which he had to face down a rebellion by legislators from his own party who objected to the sedition provisions of his signature counter-terrorism package.
"The distinctions are not blurred, they are as stark as the difference between day and night….What will not be tolerated will be actions or words designed to harm Australian troops [or] language designed to incite action against our troops in Iraq."
Australia wasn't the only English-speaking American ally to put the squeeze on speech last November in the name of fighting Islamic terrorism. At the seat of the monarchy that–on paper, anyway–still reigns over the former penal colony, Prime Minister Tony Blair pushed through by a single vote legislation outlawing the "glorification of terrorism," defined as speaking or publishing words that would encourage the "commission, preparation or instigation of acts of terrorism." This measure came on the heels of another Blair bill, also passed by the House of Commons, outlawing "inciting religious hatred."
In the United States, thankfully, you can glorify terrorism every day. As you read this, thousands of college kids and even toddlers are walking around in T-shirts bearing the iconic image of the terrorist Che Guevara without fear of being tackled by cops. Last year I attended a Hoboken fundraiser for the city's annual St. Patrick's Day parade in which the band played several songs glorifying the Irish Republican Army (including "I'm Backin' the IRA!"); no one was led away in handcuffs. Indeed, the audience was full of policemen, politicians, and other Irish Americans who have long sent material and moral support to an organization that has murdered hundreds of civilians. Ward Churchill, professor of ethnic studies at the University of Colorado at Boulder, announced last year that "fragging an officer" by rolling a grenade into his tent "has a much more impactful effect" than mere "conscientious objection." He has not been jailed.
We tolerate this kind of talk because the American Founders were hyper-conscious of the thick line separating word from deed. They so strongly believed the government had no business passing laws restricting political speech that they dedicated the very first article of the Bill of Rights to protecting this most elemental of liberties. Two hundred and sixteen years of practical experience with this free speech–however curtailed it has been, whether through Woodrow Wilson's sedition laws during World War I or John McCain's more recent restrictions on political campaigning–have given the average American a unique insight: that letting people rubbish the government, even to the point of advocating its overthrow, serves as an important pressure valve, allowing dark ideas to be exhumed, debated, and shot down openly, rather than left to fester in the shadows.
The Brits don't share this ethic, partly because they never got around to writing a constitution. The Australians managed the constitution part but left out the whole Bill of Rights thing. Freedom of speech, the Australian journalist Tim Blair tells me, is more "implied" than codified.
The implication in both countries is more than just a lack of legal safeguards against a speech-restricting government. British libel laws are notorious for placing the burden of proof on the accused instead of the plaintiff.
"Libel tourism" is a growth industry, as Saudi princes and American celebrities try to harass global newspapers or publishing companies into printing retractions or quashing U.K. releases of American books, such as Craig Unger's House of Bush, House of Saud or Rachel Ehrenfeld's similarly Saudi-bashing Funding Evil.
The Australians are "somewhere between the U.K. and the U.S." on libel, says Blair, who is the assistant news editor of The Bulletin. Lacking a constitutional framework, each province sets its own libel and slander rules, the result of which is that every national publication has to operate as if it were governed by the lowest-common-denominator regulations of Queensland, where truth is not an absolute defense, if a court finds the published information lacks sufficient "public interest."
This situation leads to the kind of libel-proof euphemisms that make Australian and British newspapers occasionally incomprehensible to Yanks. Instead of "organized crime lord," Blair explains, you have "colorful racing identity"; editors expect readers to understand that a "tired and emotional" celebrity was actually "shitfaced drunk."
So the surprise is not that Prime Ministers Howard and Blair (from the right-wing Liberal Party and left-wing Labour Party, respectively) have sought to limit speech in the name of fighting terrorism. It's that their respective legislatures, newspapers, and populations have fought their proposals with such vigor.
In London, Blair's counterterrorism package has been his least successful legislation in three terms and nine years as prime minister. In mid-November, the House of Commons gave him his first-ever defeat, when Labour Party backbenchers defected to vote down Blair's proposal to lock up suspected terrorists for 90 days without charge.
A few weeks before, the House of Lords–once a rubber-stamp hereditary body of eccentrics, since reformed by Blair into a more meritocratic and relevant legislature–had restricted the prime minister's ban on "inciting religious hatred" by forcing prosecutors to prove malicious intent and adding a provision recognizing the right to "ridicule, insult, or abuse" other religions. At press time, the House of Lords was threatening to scotch Blair's "glorification of terrorism" law altogether.
"We need not to worry so much about the loudmouths," the former Conservative cabinet member and cur?rent Lord Douglas Hurd told reporters, sounding very much like an American, "as about the quiet acts of subversion and training by dangerous people, up and down the country, who on the whole keep their mouths shut."
In Australia every major newspaper has squealed in outrage at Howard's sedition laws; the bipartisan Senate Constitutional Committee recommended in late November that they be excised from Howard's anti-terrorism package; and now the successful four-term prime minister faces a rare open revolt from within the ranks of his own party.
"There is no doubt," Constitutional Committee Chairwoman Marise Payne, a Liberal Party member, told the Australian Parliament, "that they are a very serious incursion into the way in which we currently expect to be able to live our lives in Australia."
In many unhappy ways, the free speech traditions of England and the Commonwealth are more in tune with the nervous, fussy bureaucrats of Europe (where wearing religious insignia to school, or insulting Islam, is frequently illegal) than with their loose-lipped cousins in the New World.
But the surprising opposition to November's bogus liberty-for-security trades suggests that there might be something to this "Anglosphere" stuff after all.