‘We have a natural right to use our pens as we use our tongues – at our peril, risk and hazard.’ – Voltaire

This note is a polemic of sorts, with the aim of making the case for a progressive view towards those rules of contempt of court that concern the discussion of cases, and the possibility of prejudicing the viewpoint of the jury.  Not a technical discussion of points of law, but looking in the other direction towards issues of regulation and constraint of online discourse.

This is not to assail the purpose of the laws of Contempt, nor the institutions that administer them, but to critique the practicability of some of them in the context of a shift of discursive power squarely in the favour of the people.

Arguments are well put for the educating of the Australian public as to the things they may not say online and when, and the very good reasons that these restraints are imposed, so their omission here can be taken as an endorsement of their weight and content as presented elsewhere ( see Julie Posetti’s storify on Trial by Social Media,   Andrew Heslop’s piece for the Drum, this SMH piece Trial by Social Media Worry in Meagher case)

Nor is this note itself an expression of contempt. Great respect from this writer for the concrete power to impose restrictions on public discourse exercised by the relevant august institutions. The thousands of years of law, from the Roman tradition to the modern, are not to be sneezed at.  The might of Leviathan not to be trifled with.  Its capacity to reach out a spindly, skeletal arm towards any citizen, draw them into its labyrinthine structures, is the stuff of Kafkaesque nightmare and  should not lightly be caricatured or lampooned.  Beyond the merits of might, of being the institution that is the holder of the lash, the benefits of law (and attendant demands its institutions be reasonably honoured) for peace and order in a succession of civilisations can only naively be dismissed.

But a shift in power in the discursive life of this country has  occurred, the  result of changes in technology and the natural impulse and relative freedom to communicate evidenced everywhere in Australia. These changes have brought myriad small annoyances and a concerted new effort from giant corporations to colonise  field of vision. They’ve also brought – have begun to – a real change in the capacity of citizens for inter-connexion, engagement , political, cultural, and social expression.

New responsibilities for citizens do come with this discursive emancipation.  But new rhetorical and political realities flow from it too.  One point of view is that the people must as a result learn new ways to curb their opinion and the expression of it.  A  countervailing  perspective is that this emancipation be permitted to run its course and change institutional attitudes to discourse as well as people’s discursive practices.

How unfortunate, then, if with this shift in power we not brook contemplation of acknowledgement by the State – reflected, perhaps, in the moderation of the law of the land, rather than just self-management by citizens. A new equilibrium is possible, a more democratic dialogue, at least in the semiotic sphere. Many citizens are engaging in this dialogue, though it is not as yet connected in any meaningful way with processes of government themselves.  A shame, then, to fall into the habit of hobbling citizens, before the State has fair chance to unbend to acknowledge new possibilities for more direct democracy.

But how like us, of late, to look instead to new ways to constrain the impulse to empower the people , to instead place more impositions, artificial restraints on individuals..  Is this like us? I’m afraid it is.

At one time, suppression of opinion and comment in public forums was a matter for gate-keepers. As the channels of communication were relatively few, the idea of restraining particular expression to avoid prejudicing a case is  perhaps, a natural consequence  of a system that developed in comfortable with such stipulations. It might be suggested the suppression of certain sentiments was taken as a matter of course as the right of States as it had been of Kings. And States have developed this practice in the industrialized world in the context of large media organizations publishing texts and papers, broadcasting content, read and viewed and listened to routinely by millions of people. Under these conditions it is natural, perhaps, to expect that freedom of expression, appearing  a dangerous and radical idea, be constrained – that a cautious right to free speech might be extended, constrained in certain proscribed circumstances, such as those where it might prove harmful to reputation or to the reputation of judicial institutions or in the conduct of a trial.

Today ‘publication’, as it is defined for purposes of law, is not the considered practice that saw content filtered, for good or ill, according to regimen long established.  It is – has rapidly become – an everyday occurrence – from several to many times a day for some of us, a missive or a post or a comment posted to a public forum. The discursive space that characterises Australian political life and conversation in broad terms is expanding rapidly – hundreds of thousands or  millions of people empowered to voice thoughts as only a few could do brief decades ago.  In this space politicians’ voices are diminished, and commentators, every former privileged voice, in the swell of public murmur, wit, and vitriol now audible.

This is to the good, and should not be mistaken for anything other than a general leveling of power in our civilisation. It is something for traditional, institutional powers to contend with.  Some of the same technologies empower the agents of the state in new and interesting ways: it could be argued this is only countered by the extended capabilities of citizens to make use of data streams and tools for media production and dissemination.  Citizens with wit or shocking testimony have avenues of communicating messages to millions, as do politicians, corporations, advocates, and marketing and PR professionals. In aggregate the voice of the many takes on another kind of force, by turns affirming and condemnatory, but democratic in its way.

In the context of this leveling of powers, the hierarchy of the message, the responsibility of is transferred from gate-keepers, people of responsible position, people who are in any case normally part of the structures of power.  Instead that responsibility lies with the individual, in every moment, with every utterance.  The capacity to break the law was once mediated by the resources of the institution, now it is always on the tip of every citizen’s tongue..  or fingertips.

Because publication has become a casual affair.

In a time of potential emancipation, in which the individual’s voice has gained in amplitude, the prospect is all of us second-guessing every impulse to speak.  Complex new exercises of restraint on the part of every citizen, in order that the prior far less equitable system of controls for public language, public forums, might be superficially maintained.

Actively avoiding contempt, together with the other legal requirements that follow publication, may be tricky, even time consuming.  Those who know more can negotiate these waters.  Those less acquainted with law and semantics may have to refrain from comment altogether on certain topics, certainly be more circumspect.  This is potentially problematic in itself in reinforcing hierarchies of expertise in public language – facility with complex, punishable rules of language permits an individual freer communication.

Of course we might wish that people online would exercise various forms of restraint: look forward to the day when the more uncouth usages of the present  are seen as horribly primitive. It is a new, unschooled system, with no established etiquette or protocols.  The negotiation of protocols – those that are regulatory and those administered day-to-day in common discourse by the people – is a defining political contest of the moment.  This is evidenced in the disputes and meta-discourse around ‘trolling’,  in debate on network security and metadata-retention, in discussion on the role of professional journalists and talking heads in the era of the prolecommentariat.

Currently many seem driven in their online conduct by a liberal principle of fairness that takes the individual human as the defining unit in terms of dialogic agency.  According to this principle we all have one voice, and as we have drawn closer to a situation in which one voice has as much power as another, we can be unrestrained in the use of it. Everyone else has equivalent power, and so fair right of reply.

This principle is sound, but it is not all there is. It is Newtonian in character. As was the case for previous generations the morality by which we may understand all as equal in communication only serves as long as communication is between individuals, one to one. When one communicates to millions the idea that one voice is equal to another is radically distorted.  When ten thousand people all seek to communicate with one, the simple premise of equality in voice and amplitude is similarly upset.  When ten thousand people or a million can round on one soul with insult and vituperative, new and more complex understanding is needed with respect to the power relations that underpin communication. This, it can be hoped, will come.

Can the citizenry as a whole develop finesse and decency in interactions in this sphere?  In one historical sense it seems inevitable. It is the history of the development of cultural forms or forums such as new media, new territories for discourse, that a period of lawlessness, of formlessness transpires to have been the golden era for new genres. Civilisation later laments the rigour of tight constraint. the etiquette that mandates and constrains expression, legitimises formulaic silliness and frivolity, disarming proper subversive sentiment. Is there reason to suspect the new channels of communication will be any different?  A pity to hurry to the end – constraint and manners – when that is in any case the natural course, as new generations come to regard the coarseness of the conduct of the old with distaste.

A new consciousness is required from all participants about how the game is played.

One angle of focus in pursuit of a new equilibrium may be changed perception of the credulity of the public with respect the media.    Education towards encouraging the sane suspicion of power long said to characterise the people of this country could be the beginning of the evolution of mass media and public channels of communication. It may be a process that is genuinely evolutionary, each generation native to a new raft of technologies and social practices.

One critical frame from which to view the media – all of its content – is precisely from the standpoint of power and power relations.  Beyond the content of a message, what is the purpose? What gate-keepers had to approve content in order that it find its way to audiences? What larger schemes of persuasion and normalisation does the content invoked? Who sponsored the message, or what belief system is it based on, or what agenda is it designed to promote?

Is this line of speculation not the preferable direction in which to look for a new approach to use of evolving discursive power?  The alternative is the internalisation of mechanisms of constraint –  that people police their own language in new ways as their own power increases,  in case of falling foul of rules for public language that require research to fully understand.

That citizens incorporate into their daily lives new observances, commensurate with a progressive increase in relative power, in order to protect an archaic, artificial equilibrium.

That in a time in which the public has main chance to be heard, we step back from, maintain, mimic, hold ourselves to, for the convenience of failing forms of order,  the lack of privilege to speak that was previously the natural condition.

One answer to this problem is that certain kinds of publication or report online might be censured as presenting themselves as credible, ‘factual’ material.   When I tweet I consider attribution obligatory, don’t expect to be held to a highly rigorous standard with respect evidence . The media form does not in any case allow for all proper caveats and qualifications.  In writing for a phd dissertation I write to a higher standard, expecting a higher level of scrutiny and accountability.

Taking into account these sorts of distinctions raises the interesting question of a kind of measure for verification for sources grounded in the idea that claims to be presenting more than opinion be taken seriously, and incur a requisite cost in terms either of ridicule or legal action. In this way, constraints are restricted to those who still have most influence on public opinion, those who lay claim to accuracy and rigour and those well-placed to prevent misuse of media in ways that have serious effect.

Making this distinction does not affect incitement to violence, or threatening or discriminatory talk. It is not a claim – not the same argument – that absolute freedom in citizen-to-citizen communication should be endorsed.  It does not obviate the need, in a number of areas, for civilisation-wide protocols for the use of media in which we are still only newly versed.

It does suggest, though, that different kinds of truth claim should carry different weight online, in the media and in law. That is, making a claim to publication of a document that is fact checked, or peer reviewed, or whatever measure is taken account of, incurs  a greater degree of responsibility. Distinguishing ‘kinds of publication’ in this way – online ‘speech’ from online reportage or research –   is one feasible approach to negotiating the shift in the balance of discursive power, without simply disenfranchising the people in the flush of their new rhetorical facility.

Maturing of society precipitates the evolution of protocols for online conduct.  But it also precipitates an escalation in the sophistication and awareness of the workings of the media machine.  The result is discernment: the discernment of the reader in distinguishing good journalism from partisan puffery.  The discernment of the citizen who considers when they respond to a tweet that they comment into an intemperate ocean of comment.  The discernment of the juror with respect the sorts of content that have bearing on a case, in distinguishing empty comment from real evidence, opinion from significant testimony. To the extent that this is desired, and not in evidence, education might as well be channeled to this end as to the perhaps more difficult and certainly less constructive one of causing an entire people to exercise an expert level of restraint.

The aim is education either way, focused on the exercise of constraint or in the necessary scepticism.  Both are desirable to one or another extent, but scepticism seems preferable in a democratic context. Debate on ethos and decent conduct flows in any case from consideration of rhetorical purpose and credibility in media texts.   The democratic approach is to focus education in use of media on critical appraisal of content. Perhaps it’s an education that this civilisation, even without meaning to, provides.