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The relationship between censorship and student publications Essay

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Pushing the limits of free speech and then killing it is not an uncommon theme for today’s student press. Civil disobedience and censorship of student publications has been a hot-button issue since the 1960s and remains a crucial, yet under-examined area of free speech. In an assumed tolerant democracy which flaunts philosophical ideals like a free market of ideas, censorship laws have undermined the essential function of student newspapers as an outlet for challenging, insightful and investigative journalism. The following essay seeks to examine the relationship between censorship and student publications by specifically drawing on the Rabelais case.

Accordingly, this essay further attempts to explore the legal and philosophical reasoning behind censoring student newspapers.

In 1998, the Full Court of the Federal Court handed down its first decision which directly involved the right to political communication of a student publication1. The court held that an article advocating theft published in the La Trobe University student publication, Rabelais, instructed in matters of crime and was not protected by the implied constitutional freedom of speech.

2 The appellants – four editors of the publication – argued that the article addressed issues of wealth distribution in a capitalist society and constituted political communication.3

Prior to Rabelais, Australian courts have never squarely confronted political communication in relation to the National Classification Code.4 Whilst the Federal Court’s decision to uphold the findings of the Classification Review Board generated another proponent of control on the boundaries of political communication, it simultaneously limited the journalistic scope of student publications in challenging the moral and political patterns of society. The implications of Rabelais have since posed an explicit threat to the autonomy of student publications by which student journalists are left confined within the legally permissible censorship system.5

A common principle validating restrictions on free speech is balancing. In the case of Rabelais and similar articles in nature published in other student publications, striking a reasonable balance between political material and Australia’s censorship laws fosters the argument that the protection of political communication is not absolute. Judicially-considered concepts underpinning political communication6 is often subject to the maintenance and protection of the system of representative government.7 By strict adherence to this generalization, virtually all political dissent and civil disobedience is then liable to interfere with the maintenance and protection of the government system. Heerey J8 provided further insight, claiming this relationship to accommodate an imbalance in which the protection of representative democracy overrides the protection of dissent9 by student publications:

It should be noted that Anarchist theory extended from non-violent writers and political leaders like Tolstoy, Thoreau and Ghandi to Proudhon (property is theft)… the Anarcho-Syndicalists whose creed was that unions should become militant organizations dedicated to the destruction of capitalism and the state.

All this may be in one sense politics, but the Constitutional freedom of political communication assumes – indeed exists to support, foster and protect – representative democracy and the rule of law. The advocacy of law breaking falls outside this protection and is antithetical to it. 10

However, the argument brought forward by his Honour is severely flawed. The knowledge needed to draw political comparisons from the works of Tolstoy, Thoreau and Ghandi lies in the mere fact that the writings of these revolutionaries were not refused classification, but available to the public for debate and reflection. In this instance, measuring competing interests on the basis of political ideologies in power would easily translate into banning all commonly dissenting student publications.11 The classic role of student publications in discussing socio-political affairs beyond the bounds of moral and legal civility is one which indeed supports, fosters and protects the system of representative democracy.

This lends itself to another critical failure in determining classification of student publications. In refusing classification of Rabelais, the Review Board directly addressed the legal aspect of ‘inciting crime’, compromising the publication’s implied rights to political communication.12 It did so by appraising the article in isolation from other writings of political nature, published in the same edition.13 Setting aside possible constitutional questions, the approach in reviewing student publications does not distinguish between student and mainstream media. If a student press is to function as the dutiful outlet of alternative and challenging thought in society, then such definition should allow for exceptional free speech privileges.

To give further reference to the limited interpretation of the role of student publications in Australia, there is a high probability that the article in question would have been permissible to publish in other countries, particularly the United States. Not only does the existence of a U.S. Bill of Rights expressly protect the rights of individuals to free speech, but an implicit rule applied by U.S. courts entitles student journalists to the highest level of First Amendment protection to sustain the traditional libertarian function of student publications. 14 The rule that student publications enjoy freestanding exemptions of restrictions underlying the First Amendment emanates from legislation based in the state of California, which expressly duplicates First Amendment rights to college and university students. 15

One can hardly ignore the advantageous effects of a similar law being implemented in Australia. Like the United States, it is widely maintained that student publications in Australia should remain wide-open free speech zones, where every form of speech is permitted and censorship controls are turned off.16 However, the recent introduction of the Voluntary Student Unionism bill17 before parliament has additionally threatened the agenda of student publications. Although the bill, which traces back to 197418, sets out to render universal student unionism voluntary, it could potentially be the first law that directly undermines students’ right to free speech by defunding Australia’s student press19. The Western Australian (WA) VSU model, which came into force in 1997, has cut funds directed to all student publications in the state, while other student advocacy bodies were lost completely.20

In conclusion, although Australia has a robust commitment to freedom of speech, on a practical level, this commitment is too often regulated by prevailing moral and legal protocols. As evidenced by the legal implications brought forward by the Rabelais case, there remains little conscious acknowledgement of the significant function of student media in challenging dominant viewpoints. Given the undoubted importance of the court in interpreting political communication, the process in determining such can only be rendered valid and objective if the historical and philosophical principles underpinning student media are taken into consideration.

The burden here is not only on the narrowed definition of ‘political communication’, but the lack of an accountable and tolerant classification system. Similarly, the Rabelais case reawakens the time-worn argument of implementing an express free speech right in Australia. Given that student publications are dedicated to political dissent and civil disobedience, and thus vulnerable to legal ramifications, it would arguably seem fair to grant student media the privilege of special free speech rights, over and above all the general speech rights Australians enjoy. A law similar to that of the United States would allow society to recognize the doctrine of academic freedom and protect and maintain the free market of ideas in a representative democracy. As Parsons once said: ‘The creative writer should enjoy a latitude greater than would be of proper to the journalist and newspaper published who deal with fact.”21

1 Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 (hereinafter Rabelais)

2 The article provided a step-by-step guide on how to shoplift. Pursuant to the Classification (Publication, Films and Computer Games) Act 1995, publications that describe, depict, express or otherwise deal with matters of… crime will be refused classification

3 Note 1. The Federal Court upheld the decision of the Chief Censor to refuse classification (i.e. ban) of Rabelais. The charges were later dropped.

4 Clayton, M. (2005). Interview. [Interview with Christopher van Opstal, 24/05/2005]. See also Classification (Publication, Films and Computer Games Act) Act 1995

5 Boey, H. (2005). Interview. [Interview with Christopher van Opstal, 19/05/2005]. Duncan, J. (2005). Interview. [Interview with Christopher van Opstal, 19/05/2005]. Fomiatti, L. (2005). Interview. [Interview with Christopher van Opstal, 19/05/2005]. Belford, A. (2005). Interview. [Interview with Christopher van Opstal, 19/05/2005].

6 For example, in Australian Capital Television v The Commonwealth (1992) 177 CLR 106, six members of the High Court acknowledged the implied freedom of communication in government and political matters. Other judicially-considered cases in Rabelais, include Theophanous v Herald Weekly Times (1994) 182 CLR 104; Lange v Australian Broadcasting Commission (1997) 189 CLR 520; Levy v The State of Victoria (1997) 189 CLR 579

7 Pearson, M. (2005). Interview. [Interview with Christopher van Opstal, 23/05/2005]

8 French J and Sunberg J were the two other judges in Rabelais

9 Heerey J refers here to ‘dissent’ as writings which advocate breaking the law or anarchy

10 Note 1 (Heerey J). By contrast, the appellants’ council argued that advocating theft was ‘an appropriate means of reallocation of resources… of political dissent… or as a central tenet of Anarchist theory.’ The same argument is brought forward by Des Clark, Chief Censor of Australia. Clark, D. (2005). Interview. [Interview with Christopher van Opstal, 26/05/2005]

11 Clark, D. (2005). Interview. [Interview with Christopher van Opstal 26/05/2005]. Clayton also points out that a publication which incites crime must be banned under regulations by the OFLC, even though the publication may be of political nature. Note 4.

12 Note 4. See also Clayton, M. 1998 ‘Censorship, Free Speech and the Rabelais Case,’ Legal Date, Vol. 10, No 1.; Clayton, M. and Borgeest, T. 1998, ‘Free Speech and Censorship after the Rabelais Case,’ Media and Arts Law Review, Vol. 3 at 194

13 Note 1. The Rabelais edition also discussed political issues of death penalty in the United States and pending execution of a former black activist, Mumia Abu Jamal

14 Goodman, M. (2005). Interview. [Interview with Christopher van Opstal, 23/05/2005]

15 Pursuant to s 76120 of the California Education Code, the ‘governing board of a community college shall adopt rules and regulations relating to the exercise of free expression by students’. See California Education Code Section 66301.

16 Boey, H. (2005) Interview. [Interview with Christopher van Opstal, 19/05/2005]

17 Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Bill 2005

18 Aldrich, F. (2005). Interview. [Interview with Christopher van Opstal, 27/05/2005]

19 Note 13. If impending VSU is passed by the Senate in July, it will be necessary to cut funds to the printing of student publications. This will result to the disappearance of most student publications.

20 Hastings, G. (2004) ‘VSU Legislation Experiences in WA, Victoria, and Federally,’ NUS Research at 5

21 Pollak, M. 1990, Sense and Censorship, Reed Publishers, Sydney, at p. 284

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