Australian readers will be well aware of the legal brouhaha surrounding the social media use of rugby player Israel Folau. The most neutral way of putting the matter is to say that Mr Folau made comments about gay people which were considered gravely offensive and resulted in his contract as a professional athlete being terminated. The post in question was as follows –
As it happened, about the time this particular storm was brewing, I happened to notice a case in my home jurisdiction’s law reports that was worth considering on the matter of what speech is impermissible
The Case
Robert Brickell was a pretty angry man. He was described as a “mission worker” and on 7 April 1940 he was a man on a mission. He had fitted a microphone and loudspeakers to his car and gave a speech in Barkly Street, Ararat, which drew quite a crowd. He referred to the mayor’s decision to refuse permission to use the town hall for a religious meeting, and then to the mayor’s own religion. Warming to his theme he said –
The organisation responsible is that whose blighting influence has spread over most of the countries of Europe and whose slimy hands, dripping with blood unrighteously shed, is subtly but effectively grabbing control of this country, namely, the Roman Catholic Hierarchy of Authority which operates from the Vatican city, Rome, and carries on the biggest racket ever perpetrated upon mankind, blasphemously attaching the name of God and Christ to their racket.
The crowd became agitated and some people said “stop him or we will”. Police constable Eric Annett intervened to prevent a riot. Brickell was charged with breaching §24 of the Police Offences Act 1928, which provided –
Every person who … uses any … insulting words … in … any public place … whereby a breach of the peace is likely to be occasioned shall be liable to a penalty of not more than Ten pounds; and in default of immediate payment shall be committed to prison for a term of not more than three months unless such penalty is sooner paid.
The matter was dealt with in the Court of Petty Sessions. Brickell was convicted and fined £2 (about $170.00 in today’s value). He applied to have the conviction reviewed: Brickell v Annett (1940) The Argus, 9 May 1940 at 7.
Barrister DM Little, instructed by the firm of Nevett, Nevett & Glenn (now Nevett Ford Lawyers) sought to overturn the conviction on the basis that the words used, while offensive, were not insulting, unless there was insult to the personal feelings of the hearers. Insulting, he said, was confined to attacks on a person’s moral character only and not (say) physical appearance.
O’Bryan J took a different view. He considered that the word “insulting” had a wide meaning and covered scornful abuse of a person or the giving of a personal indignity or affront.
A Catholic would, I have no doubt, hearing the words in question, regard them as an abusive attack upon his personal religious beliefs and practices and would thereby suffer a personal affront. To say to a man that his religion is a sham, that it is a mere dishonest business and trickery, is to offer him a personal indignity as direct as possible.
It followed that the conviction stood. The section in question, incidentally, lives on in §17 of the Summary Offences Act 1966.
It seems to me there are lessons for both sides in the ruling in Annett. On one hand, critics of what one might call public Christianity should not claim a right to say whatever invective comes into their minds –
This is how devout #Christians roll, rape & pedophilia. I wonder what #Scomo has in his closet. Whatever it is, #Dutton will release it when the time’s right. #auspol #Hillsong #NRL #Catholic #RapeCulture
— Big Bert (@BigBert94948361) July 6, 2019
On the other, free speech fans should remember that there has never been an open season to pick fights.
Stephen the Lawyer 