Political Satire Road Test (AU vs. US edition)

Political Satire Road Test:
Political Speech Rights in American Versus Australian Political Satire

I. Inspiration for Political Satire Road Test (USA v. AU Edition)

No political satirist could broadcast the following footage on United States network television without a visit from a Secret Service agent. But in Australia, they broadcast this clip weekly during prime time, on network television, which the government finances:



(The Chaser’s War on Everything a current events lampoon show that airs on the Australian Broadcasting Corporation, is the source of the previous as well as most of the following embedded links.)

I discovered this show while traveling and studying abroad in Australia. I had long been a student of political satire. I had memorized speeches by the “presidential candidates” on Saturday Night Live. I admired Bill Maher when he was still allowed to broadcast Politically Incorrect on both basic cable and network television. I even drew political cartoons and wrote a satirical political column for my high school’s student newspaper.

But throughout all that, I couldn’t help feeling that American television comedy programming exercises too much restraint, cutting off the joke before it becomes as funny as the situation it is mocking. It seems no program wants the joke to go as far as the writer can take it, especially in this current presidential administration.

So after the Australian program enlightened me, I began to think about the last time I really laughed at something that an American political comedy show produced. And when I couldn’t remember my last big American laugh, I decided that I wanted to figure out why. At first, I just used my own intuition to guess whether a satirist could broadcast much of the material from Chaser’s War on Everything in the United States. But when I got the opportunity to produce this project, I decided to analyze the Chaser footage in terms of each nation’s Constitution. Could Chaser survive in the U.S. under its constitution and precedent? Why or why not?

I will break down my answer into about four areas of analysis:

First, I will show the extent of Australians’ free speech rights. First, I will demonstrate that some of the material in The Chaser’s War on Everything is “the line” between protected and unprotected political speech. I believe the program serves as “the line” because the members of the troupe very rarely face major repercussions (other than some public complaints) for the material it broadcasts – except once or twice (which I will discuss).

Next, I will discuss “the line” for free speech in the United States by discussing instances that show the point where citizens’ political speech freedoms have become limited. Third, I will explain the precedents, rules, and inconveniences American speakers have faced that have limited their various forms of political speech.

Fourth, I will explain the Australian cases and precedents that have served to expand various forms of political speech in Australia. Finally, I will draw conclusions about each respective nation’s speech laws and precedents. I will make value judgments -- maybe even some accusations.

II. Where’s My Line? (U.S. Edition)

The line to which I am referring is the line where the law affects a speaker. How hard and how much can a speaker laugh at the U.S. Government’s expense before the speaker receives a visit from the Secret Service (or faces some other intrusion into your personal freedom because of what you said)?

When you’re looking for your “line,” forget the case law because it tells you little. You can read O’Brien until Porky Pig turns kosher. Burning a draft card or wearing a “Fuck the Draft” jacket isn’t the same as everyday political waggery, which composes the content of the following incidents. Not every speech act results in a federal case. Sometimes, people don’t speak because someone makes it inconvenient for that person to speak, and that speaker lacks the resources to fight the silencer. Observe the following cases in human behavior. Here are three satirical speakers that have received unwanted disciplinary attention recently. You decide.

(1) Americans can receive visits from the Secret Service simply for OWNING political satire, or enjoying a satirical piece of work:

A.J. Brown, a young college student received an unannounced visit from the Secret Service in reference to a poster that she owned. The poster “showed President George W. Bush holding a rope, with pictures of numerous hanging victims in the background.” The poster’s text: “We hang on your every word,” and on the bottom of the poster, the text read, “George Bush: Wanted, 152 Dead.” The poster referenced the number of people who had been executed during George W. Bush’s tenure as the Governor of Texas. The Secret Service took no further action against A.J. Brown, but I think it will be a long time before she displays a “Dickhead Cheney” poster in her room. She, like many other Americans will now probably self-censor her speech to the point where she is inhibited from exercising her full right to political speech. She will censor herself out of the fear she probably experienced during this incident. (See Mocking George: Political Satire as True Threat in the Age of Global Terrorism, 58 U. Miami L. Rec. 847.)

(2) Even BEFORE the events of September 11, 2001, the U.S. Government had long lost its sense of humor:
In February, 2001, a SUNY Stoneybrook student named Glenn Given published a satirical editorial titled, “Dear Jesus Christ, King of Kings, All I Ask is That You Smite George W. Bush.” He also called for the murders of some of President Bush’s cabinet members and Vice-President Dick Cheney. “And if God is too busy,” Given suggested, “then maybe God could subcontract this ‘work’ out to “some other biblical figure.” (See Mocking George: Political Satire as True Threat in the Age of Global Terrorism, 58 U. Miami L. Rec. 848.)

While my immediate reaction is to follow up Given’s editorial with a suggestion that Halliburton will take the job as long as it’s a no-bid contract and there’s money in it for Cheney, I fear a visit from a Secret Service agent for saying so -- Much like the one that Glenn Given received when the Secret Service showed up unannounced at the office of the Stoneybrook Press. They “questioned [Given] for close to an hour without an attorney and without advising [Given] of his rights ... convinced him to sign waivers allowing for the search of his home and a review of his medical records ... asked him whether he was a member of any dissident groups, if he ever had any problems with the law, and if he had ever been institutionalized for psychiatric care” (See Mocking George: Political Satire as True Threat in the Age of Global Terrorism, 58 U. Miami L. Rec. 849).

Then the Secret Service told Given that the First Amendment did not protect Given’s editorial “because it was incitement speech,” and they “might file charges if they received any additional complaints” (See Mocking George: Political Satire as True Threat in the Age of Global Terrorism, 58 U. Miami L. Rec. 849). (We will learn why Given’s editorial is not illegal incitement speech in a future section.)

Given signed those papers permitting the Secret Service to invade his privacy only because the Secret Service had threatened to arrest him. When the Secret Service members searched Given’s home, they looked for telltale objects, like The Unibomber’s Manifesto and other “subversive” literature. And all of the copies of the issue in which Given’s editorial appeared mysteriously disappeared from the racks at SUNY Stoneybrook (See Mocking George: Political Satire as True Threat in the Age of Global Terrorism, 58 U. Miami L. Rec. 849).

So it seems that 9/11 made no difference in the type of limitation that the U.S. Government places on political satire. They were conducting illegal searches and bullying citizens with threats long before the infamous terrorist attacks. But the perceived terrorist threat gives Bush and his Bushies a convenient excuse to feel justified (and scare Americans into thinking that they are justified) in taking away all of our fun. Is Dick Cheney’s plan to concentrate power in a unitary executive dependent on outlawing laughter at the executive’s expense? If it is, then I think someone needs to put saran wrap on his toilet seat and then put laxatives in his food before it’s too late.

(3) The U.S. Government thinks toilet paper is a dangerous missile!

AGAIN - BEFORE 9/11: Witnesses reported that an Estes, Colorado man had been handing out rolls of toilet paper and instructed the recipients to throw them at the President’s motorcade. The rolls of toilet paper featured photographs of President Bush, Dick Cheney, Colin Powell, Donald Rumsfeld, and John Ashcroft. Below each photo was a snarky label for each person depicted – “Bush Wipe,” “Dick Wipe,” “Colin Wipe,” “Rump Wipe,” and “Ash Wipe.” (See Mocking George: Political Satire as True Threat in the Age of Global Terrorism, 58 U. Miami L. Rec. 848.)

Enter (again) the Secret Service (don’t they have anything better to do with our tax dollars?). They instructed the local police to take the distributor into custody at police headquarters. The Secret Service needed to know whether this young man was a threat to the President. The Secret Service held him for over an hour, during which they told him that the “toilet paper rolls were missiles that posed a threat to national security!” The ACLU succeeded in dismissing the $150 fine for the “offense” (See Mocking George: Political Satire as True Threat in the Age of Global Terrorism, 58 U. Miami L. Rec. 849).

These stories aren’t just my way of pumping biased information into the reader’s head. I’ll leave that to Fox News and Rush Limbaugh et al. I’m simply trying to show that while there are no actual statutes to illustrate clearly Americans’ dwindling political speech rights, the increased inconvenience Americans experience for exercising their rights seems to silence speakers. In addition, Americans are putting an abstract concern for their physical safety ahead of their right to speak. (And I say “physical” safety, because it is illogical to think that giving up a civil right is necessarily a way to protect a democracy.)

Even statistically speaking, it turns out that Americans are starting to buy into the idea that less political satire will necessarily make us all safer. According to the 2007 “State of the First Amendment Report” (http://www.firstamendmentcenter.org/news.aspx?id=19031), a significant percentage of people believe that the paltry free speech rights that we still maintain are too permissive. For example, “34 percent think the press ‘has too much freedom.'”
In addition, “25 percent said ‘the First Amendment goes too far in the rights it guarantees,’ well below the 49 percent recorded in the 2002 survey that followed the 9/11 terrorist attacks in 2001, but up from 18 percent in 2006.” The survey also showed that there was little to no public support for student expression (Bong Hits for Jesus, anyone?), and that many high school students are apathetic about their free speech rights. Only 62 percent of those interviewed believed that the right to receive information to be “essential,” and only 60 percent believe in their right to assemble and petition.

See Gene Policinski’s commentary:
http://www.firstamendmentcenter.org/commentary.aspx?id=19078

America has begun a WAR on POLITICAL SATIRE.

This has been a terrible, horrible, no-good, very-bad revelation. I think I’ll move to Australia. (See “Alexander and the Terrible, Horrible, No Good, Very Bad Day” by Judith Viorst.)

III. Whay’s Muh’Line, Bruce? (AU Edition):

The theme song of The Chaser’s War on Everything is the least of the bold political speech that appears on the weekly program. It would be insulting to the Chaser if I were to liken it to Jon Stewart’s The Daily Show, but the principal is the same -- it is a program that uses news and other footage to lampoon the country’s political direction. Each episode contains good-natured jabs of Australian (and other nations’) politicians, and the writers and performers appear to have much more freedom than satirists have in the U.S. But what continues to amaze me most is how close these guys actually get to Australia’s premier politicians, and “take the piss,” but have hardly faced any reprisal for doing so.

In the U.S., political satirists seem to mock politicians from a distance. And even the mockery seems quite restrained. And who could blame them? For example, in the United States, the American Broadcasting Corporation dropped Bill Maher’s Politically Incorrect when Maher exercised his free speech right “too soon” after the 9/11 attacks. Maher’s antics continue, however. Now called RealTime With Bill Maher, Maher has been relegated to HBO, a premium cable network, which has a narrower reach than a network television station. Many late night shows, where the majority of the political lampooning takes place, didn’t even air for months after 9/11, when the country probably most needed to laugh. When you read about the Aussies, you’ll see that in comparison, it seems that Americans collectively have no sense of humor.

The Chasers are not only able to get very close to politicians, but they also seem to have complete freedom when they speak to or about politicians. The troupe members have faced only a few free speech limitations throughout their many controversial skits. The first obstacle they faced was deciding the name of the show. According to a February 14, 2006 article in the Sydney Morning Herald, the troupe “had to find a name it liked and the ABC didn’t hate” (see “Even the ABC May Be Up in Arms Over The Chaser’s War on Everything,” by Sacha Molitorisz). The ABC “hated” such titles as The Chaser’s Age of Terror Variety Hour and Thank Allah it’s Friday.

(See the interview: http://www.smh.com.au/articles/2006/02/11/1139542439715.html).

Another obstacle they face is that “the commercial networks wouldn’t touch us,” according Chaser Chris Taylor’s interview with the Sydney Morning Herald. Sure, the commercial networks are afraid of offending people and losing revenue. But the state-funded ABC will finance the Chaser’s criticism of the hand that feeds them. That is the government’s ultimate respect of its citizens’ rights.

(http://www.smh.com.au/articles/2006/02/11/1139542439715.html?page=3)

Taylor says, “they [the ABC] will always have a good bureaucratic reason not to let a joke happen, but at least they let the show happen.”

(http://www.smh.com.au/articles/2006/02/11/1139542439715.html?page=3).

After I had seen the Australian show many times, I was left to wonder which jokes were not allowed to happen -- there were so many which, in the U.S., would surely have had the Secret Service harassing the speakers. Instead, the Sydney Morning Herald refers to The Chaser’s War on Everything as “refreshing.”

The “refreshing” show offers political satire without treating Australian officials with “kid gloves.” For example, one episode featured videotape of deaf people insulting politicians in Sign Language, with subtitles that translate the signing to viewers. The film shows that the politicians did not even bother to tell these deaf blokes that they did not understand sign language. They just smiled, nodded, waved, and walked away. One politician even responded to “you’re wasting time in Parliament” with “Very good; I agree with everything you’re saying.” All of the Australian public that wanted to see this footage, saw it. Again, none of it was censored, and the Chaser boys faced no punishment.

Deaf guys insulting politicians:



Julian Morrow, however, faced one obstacle during the show’s first season. In another bold move, executive producer Julian Morrow presented the Australian Wheat Board with a huge check to “Shady Jordanian Trucking Company” and asked AWB Executive Charles Stott to sign it. (This stunt was of course in response to the Australian Wheat Board’s ‘Oil for Food’ scandal, in which the AWB violated UN sanctions by adhering to Saddam Hussein’s demand that the AWB pay AUD $290 million for “transportation fees” to Jordanian “trucking” company, Alia, which had no trucks.) Coincidentally, the price per ton of wheat was then raised to slightly higher than the “fees.”

(http://www.theaustralian.news.com.au/story/0,20867,21736127-5003900,00.html).

Apparently, the matter was refered to the police, but Morrow never heard from the police.

View the “Chaser's War on Everything” skits about the AWB scandal here:

Julian Morrow presents check to “Shady Jordanian Trucking Company” to AWB Executive Charles Stott:



Andrew Hansen as the Surprise Spruiker, “commenting” on the scandal:



The Chaser faced its most recent speech limitation when the police arrested Julian Morrow. However, it seemed that the goal of the stunt was to see how far the Chaser could take a joke before the police would arrest them. The arrest occurred during the September 2007 APEC Summit after Morrow and Chas Licciardello orchestrated a phony motorcade journey through three levels of APEC Summit security, to the front of George W. Bush’s hotel. The men drove this phony motorcade through three top security checkpoints hoping they would get caught and make people laugh. However, the police kept waving them through, even as they tried to end the joke by turning around. They realized that they would have to get out and walk before any police would notice them. Out came Morrow -- and Licciardello dressed as Osama Bin Laden. They arrested Morrow for the incident, and the matter was sent to court. It never went to trial, however. I will explore why the trial never happened in a later post explaining Australia’s political speech laws.

APEC Summit Phony Motorcade:



All of these so-called limitations the Chaser faced were not very harsh, considering the obstacles their expression would have faced in the United States had they tried to produce the program there. After seeing that, I had to find out how Australia’s free speech provision allows the Chaser to get so close and play so roughly with Australia’s officials - a luxury that the U.S. free speech culture would never permit. I was very surprised to find out that Australia has NO free speech right in its Constitution!

IV. Yawns, Snores, and a Little Outhouse Tryst With Jerry’s Mother:

U.S. First Amendment/Political Speech Law History

The United States and Australia share a legal similarity in that their “line,” the place where speech limits come into play, is absent in the explicit text of their respective Constitutions.

The U.S. Constitution clearly offers a positive right of free speech, while Australia’s Constitution notably lacks a Bill of Rights altogether. And while both countries have used case law to determine what their citizens can and can’t say, the results show stark distinctions between two seemingly similar nations.

A very broad version (perhaps the folk tale version) of the reason why the U.S. Constitution’s free speech clause came into being is that Americans didn’t want to have their head chopped off for “dissing” the King of England. Two-hundred plus years and hundreds of cases (and many of my hours spent in the law library) later, the modern freedom of speech law boils down to just that: you can freely and legally insult the King of England as often and as severely as you want (warning: this law might change when England once again has a king). Briefly, though, U.S. citizens had it pretty good. It is rumored that before we learned how to distribute press by a means faster than carrier pigeon, Americans had recourse against their government by criticizing them. Then came the first age of paranoia, or as “scholars” like to call it, the Incitement Cases.

Yes, the law’s tentacles reach beyond the prohibition of shouting “fire!” in a crowded movie theatre. Schenck’s law (1917) is that you can’t say anything that brings about the “subversive evils” that Congress has a right to prevent (Schenck v. United States, 249 U.S. 47 (1919).

It’s good that Abrams decided to distribute a couple of leaflets two years later, because his actions gave this law some teeth. (If Schenck’s law had lasted through until today, I’d imagine that mundane speech activities such as insulting your grandmother-in-law’s Christmas turkey could have the Secret Service carting you away.) Abrams’ law limited “subversive evils” to activities that could hinder U.S. progress in fighting World War I (Abrams v. United States, 250 U.S. 616 (1919)). A step forward.

Then Gitlow (1925) established that states had the right, under the police power, to punish certain kinds of speech if the speech advocates any kind of “substantive evil” that the state wants to prevent (Gitlow v. New York, 268 U.S. 652 (1925)). Gitlow was another step back for free speech rights in America. (In Mississippi, where my grandmother-in-law lives, insulting Christmas turkey counts as “substantive evil.”)

Then there was Whitney, and Gitlow two years after, in which we learned that a state has a right to punish you if you utter something that is against the public welfare. Such forms of speech include incitement of crime, disturbing the public peace, or threatening the unlawful overthrow of organized governments (Whitney v. California, 274 U.S. 357 (1927)).

(It’s entertaining to note that the “actors” in these cases weren’t really doing what the cases made it sound like they were doing. At this point in time, the U.S. was so paranoid that communism would swoop in and take over, that it punished some pathetic, powerless people to make an example out of them.)

All was quiet for a while, until Dennis menaced the then-existing law. Now, the state could not punish speech unless they could show that the speaker’s speech would result in “clear and present danger” (Dennis v. United States, 341 U.S. 494 (1951)). Over the next few cases -- Yates, Scales, Noto -- the Justices bickered over whether it was more important for the danger to be clear, or whether it was more important for the danger to be present. They threw around the requirement of specific intent (Scales), and that it was not the utterance of ideas that should be punished, but rather that advocacy of action that is not constitutionally protected (Yates v. United States, 354 U.S. 298 (1957)). None of this really mattered in the long run, because the red scare would be over soon, and the U.S. would have a different bone to pick with its “freely speaking” citizens.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) brightened free speech prospects for the media and all who sought to criticize government officials engaged in their official position. The Supreme Court achieved this speech triumph by creating an “actual malice” standard for libel and defamation. The standard requires plaintiffs in libel and defamation cases to prove that the speaker knew that the statement was false, or acted with “reckless disregard” for whether the statement is true (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). This standard is so high that it’s supposed to be hard for public figures to win libel and defamation cases. However, “although New York Times v. Sullivan purported to shield the press from liability in defamation suits brought by public officers, juries have found for plaintiffs in more than half of the cases decided under the actual malice standard” (MLRC 2004 Report on Trials and Damages, Media Law Research Center. MLRC Bulletin 63, tbl. 5 (Feb. 2004).

The “scholarly” reason why New York Times Co. v. Sullivan helped this great nation is that it allowed writers to publish their opinions about the government during the Civil Rights Movement. Not to disparage the importance of the Civil Rights Movement, but I believe the coolest thing to come out of New York Times Co. v. Sullivan is the press’ freedom to run an advertisement in Hustler magazine about how Jerry Falwell’s “first time” (drinking Campari) occurred in an outhouse with his mother (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).

The Falwell case favored Flynt because in 1967, a football coach brought a similar case against a media agent who accused him of “fixing” a game (see Curtis Publication Co. v. Butts 388 130 U.S. (1967). The case makes little to no notation in history, except that it added another spike to New York Times Co. Rosenbloom v. Metromedia, Inc. (403 U.S. 29 (1971)) followed Butts. In Rosenbloom, “the Supreme Court specifically rejected the public figure/official requirement and held that actual malice must be proven where the speech involved ‘an event of public or general concern’” (see Laguzza, James R. Hustler Magazine, Inc. v. Falwell: Laugh or Cry, Public Figures Must Learn to Live With Satirical Criticism. 16 Pepperdine L. Rev. 100).
These cases helped Larry Flynt prevail, and solidified the ruling that public figures as well as public officials cannot seek compensation for intentional infliction of emotional distress that others’ speech acts may have caused them, “unless [the public figure] can show that the statements that gave rise to the distress were false and that the person that made those statements knew they were false or acted with reckless disregard for the truth in making the statements” (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).

Jerry Falwell was understandably upset about the result. However, the cases that limit public figures’ ability to recover damages constitutes one of the few progressive movements in free speech law. According to James Laguzza, “This belief is premised upon the idea that public officials and public figures have voluntarily exposed themselves to a heightened risk of injury from defamatory statements concerning them. Additionally, public figures and public officials generally have superior access to the media and thus are more able than private plaintiffs to rebut false statements made about them” (see Laguzza, James R. Hustler Magazine, Inc. v. Falwell: Laugh or Cry, Public Figures Must Learn to Live With Satirical Criticism.)

This movement was extremely valuable to political speech. Laguzza suggests that “If the Court surmised otherwise, there could be little doubt that political cartoonists and satirists would be subjected to damage awards without any showing that their work falsely defamed its subject” see Laguzza, James R. Hustler Magazine, Inc. v. Falwell: Laugh or Cry, Public Figures Must Learn to Live With Satirical Criticism and 16 Pepperdine L. Rev. 107.) These cases note that while satires are in fact directed to attack their subjects, they are tools of public discourse that have helped to enrich public debate.

And yes, this advertisement does count as political speech, as Flynt’s scholarly magazine sought to lampoon a person (Falwell) who historically used his position at the pulpit for political reasons and gains. Campari and soda, anyone?

Hustler Ad -- Note the warning on the bottom. (Thanks, fellow blogger!):

Tralfaz (Blech!): Rest in pieces, Jerry


Fast forward several years later, and the Vietnam War happened. With that came another paranoid government who tried to eradicate jackets bearing the phrase “Fuck the Draft” (Cohen v. California, 403 U.S. 15 (1971)), and the burning of draft cards (United States v. O'Brien, 391 U.S. 367 (1968)).

And I’m going to stop here – O’Brien. That’s the little nuisance case that keeps Jon Stewart from actually being funny. O’Brien is a pain in the neck because the Supreme Court took an act such as “burning a draft card,” and turned that act into “symbolic speech.” Now ALL symbolic speech can be punished if it meets four requirements:

(1) The regulation is within the constitutional power of the government;
(2) It furthers an “important or substantial” government interest;
(3) The interest is “unrelated to suppression of free expression;” and
(4) ‘Incidental restriction’ on First Amendment freedoms is “no greater than is essential to the furtherance” of the government interest. (United States v. O’Brien, 391 U.S. 367 (1968)).

We have learned that the government can find anything it wants to, especially in this time, the “War of Terrorism,” or as rock band Green Day refers to it, another “age of paranoia.”

Green Day’s song, “American Idiot”:




I will use the O’Brien to measure U.S. political satire, because satire is symbolic in nature. Symbolism, like a burning of a draft card, is designed to incite an emotion through a demonstrative act rather than the words used in the speech. Much of what political satirists, particularly the Chasers (and arguably Jon Stewart on his better days), perform, are symbolic acts meant to engender feelings about government actions. Does the Chaser’s “Surprise Spruiker” pass muster against the O’Brien Four? Would the now dead Australian court case against the Chasers, (who drove a fake motorcade toward George W. Bush’s hotel at 2007’s APEC Summit dressed like Osama Bin Laden) have been heard in America?

I'll answer these questions. But first, I’ll take a look at the rules that govern Political speech in Australia.

V. More Yawns and Snores: Australia’s Political Speech Law:

Given the bold sketch comedy you just saw, you might be surprised to know that the Australian Constitution offers no right to freedom of speech. In fact, Australia’s Constitution doesn’t offer its citizens any rights at all. I learned in seminar I took this past summer at the University of Technology Sydney, (taught by Patrick Keyzer, Professor of Constitutional Law and Deputy Dean of Bond University), the framers of the Australian Constitution did not believe a Bill of Rights was necessary because the Australian Constitution provides for a representative government. Given that each voter had an equal share of political clout, it was not necessary to protect rights within the Constitution. If citizens don’t like the government, they can simply vote for someone else. However, through the years, the High Court has been able to explicate some of these implied rights, most notably the protection of political speech.

The essence of Australia’s definition of political speech rests in a writing by Eric Barendt, (now a professor of Media Law at University College London) in his book, Freedom of Speech: “Political speech refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.” That seems like a wide definition. However, the Australian Court has really sought only to widen that definition as time has progressed.

It wasn’t until 1992 that someone felt that the Australian government limited their free political speech rights. In Australian Capital Television Pty Ltd v. Commonwealth, the High Court ruled that political speech is an element of a responsible and representative government; in order to preserve a responsible and representative government, it is necessary to provide a right to free political speech as a shield against government abuse. This case also reversed part IIID of the Australian Broadcasting Act on the grounds that they were invalid. The court opined that there was no justification for the extent to which they restrict political communication.

While this now guaranteed right of political speech allows the Chaser group to have up-close and personal confrontations with politicians, their freedom to pull a prank near a polling or ballot place has been severely limited. According to Section 340(1) of the Commonwealth Electoral Act of 1918, a fine of AU $500 will be levied to any person who interferes with a vote in any way. Violations include canvassing, soliciting, inducing a voter not to vote for a particular candidate, inducing a voter not to vote, or displaying a sign. Aussies take their right to vote seriously; in fact voting is mandatory for all Australians, unless they want to face a fine.

Unlike the United States’ trend of continuously narrowing and distinguishing away free speech rights, Australia’s political speech freedoms widened and expanded since 1992’s Australian Capital Television Pty Ltd v. Commonwealth. The Court handed down the Theophanous decision in 1994, which authorized the use of political speech as a defense against defamation. For a while, this decision, which looked a lot like New York Times Co. v. Sullivan, allowed Australians to use their implied right of political communication as a defense against defamation provided that the speaker was not aware of the falsity of the speech, the speaker did not publish the speech recklessly, and that the publication was reasonable “under the circumstances” (Theophanous v Herald and Weekly Times Ltd.).

Also in October 2004, the Court decided Stephens v. West Australian Newspapers Ltd. Stephens was significant because it offered the same rights to residents of Australian states that the Australian citizens enjoy at the federal level. That provision seems obvious. But the decision really meant that certain laws in each state can be affected if they violate the implied right to political discussion.

Just for a moment, compare Stephens to Gitlow from the United States’ speech cases. In Gitlow, the government allows a state law to remove a right to free speech if there is a government interest in repressing speech. In Stephens, Australians are faced with the same question – the states have laws, but what happens when a Constitutional right interferes with these state laws? In the United States, repression of speech wins, and the right to free speech is reduced and distinguished away. In Australia, however, the states lose, and speech wins. Something is rotten in the State of … er … United.

More recently, in 1996, the High Court handed down Muldowney v. South Australia. Muldowny stated that it was an offense to encourage voters to deface or mark their ballots in a way other than prescribed (Muldowney v. South Australia). The justification for this type of limitation on political speech is that this type of political speech interferes with the process of a representative democracy. It is not a discussion of who would be a better representative or distaste for any law or the actions of any government; it is simply a useless way to interfere with the democratic process. I guess the simplest way to explain it is to analogize it to the “redeeming social importance” standard that we have endured in the United States’ obscenity cases. Basically, the court in Muldowney discouraged political communication that does not communicate anything. (Although it could be argued that defacing a ballot and interfering with the vote is actually valid political communication.)

In order to apply one of these free speech cases to Australian laws, the law in question must pass a test that would determine whether the state law impinges upon an Australian citizen’s free political speech rights. Then there is a balancing test: the law’s legitimate purpose for existing must be greater than its impact on political speech. (The only difference between this and a Gitlow type of law is that the Australian government tends not to abuse the political speech freedom as often.)

Cunliffe and Another v. Australia (1994) sums up the real disparity between Australia and the United States’ actual freedom of speech: The United States does not use the compelling standard with regard to speech rights; ever since Gitlow, the United States government has been required to show only a rational basis to limit its citizens’ freedom of speech. In 1969, O’Brien furthered Gitlow’s limitation of political speech by providing that the U.S. government must provide only one of four very weak rationales or “government interests” to limit a citizen’s symbolic speech (see United States v. O’Brien or the previous post). One of these criteria is that the government interest is “unrelated to the suppression of freedom of expression.” In this current administration, all a government official has to do is cry wolf—er, safety, and the government prevails over the speaker.
In Australia, however, the government needs a compelling justification to curtail political speech. So basically, the Australian government needs to satisfy a much higher standard in order to limit its citizens’ political speech.

To get an idea of the difference between the “rational” and “compelling” standards, think of it this way: Australia’s speech rights are on par with the United States’ protection of the civil rights of racial minorities. In other words, the government needs a compelling reason not to grant a right – an almost impossible standard for the government to reach. United States citizens’ speech rights can be analogized to the extent to which the U.S. Constitution protects the rights of non-heterosexual citizen. (In other words, the government needs only a “rational” reason to curtail these rights – which, from my fair and balanced perspective, the government regularly pulls this “rational” reason out of its collective ass.)

Australia -- more freedom of speech rights and the weather is consistently better – perhaps I should apply for immigration papers.

VI. The Chaser’s War on Everything Roadtest:

Would The Previously Viewed Skits Be Protected Under American Free Speech Laws?

1. The Theme Song

It can be argued that The Chaser’s War on Everything theme song is symbolic speech. No one (except maybe Dick Cheney) reasonably believes that the crosshairs targeted at George W. Bush, John Howard, et al, are literally threats to kill these men. Thus, it can be argued that this particular vignette is symbolic speech – the speakers are trying to convey an intelligible message through actions instead of words.

If the Chasers were American broadcasting this material in America, it would most certainly be banned. Perhaps it would first be banned by its network, whose lawyers would have a coronary, and whose advertisers it needs to keep (the eternal problem with privately funded network television). But let’s say the network doesn’t step in. The next “checkpoint” is a government official who is loyal to the Bush Administration. This official would see this and the Secret Service would surely be at the Chasers’ door.

The government official would cite O’Brien’s famous four, and prove that it could satisfy all four of them “in the age of terror.” Again the four criteria that allows the government to curtail free speech are:

(1) The regulation is within the constitutional power of the government;
(2) It furthers an “important or substantial” government interest;
(3) The interest is “unrelated to suppression of free expression;” and
(4) ‘Incidental restriction’ on First Amendment freedoms is “no greater than is essential to the furtherance” of the government interest. (United States v. O'Brien, 391 U.S. 367 (1968)).

Given the government’s reaction to the “toilet paper incident,” the Bush administration would likely define the “crosshairs” gag as a threat, against which the government can take action under its Constitutional rights. Second, the “important or substantial” government interest that is furthered by banning this speech is the ever-present “protecting national security.” Because when you “threaten” the president, you threaten the republic. They would then argue that preserving national security is “unrelated to freedom of expression.” Finally, the government would argue that this “incidental restriction” does not prevent the Chaser from producing its program, but that the government interest of preserving national security is more important.
Today’s court would find the government has satisfied at least one of these criteria. Chasers lose.

2. Deaf Guys Insulting Politicians in Sign Language:

Constitutionally, we could theoretically get away with this one in the U.S.A. This is mostly because it is unlikely that a typical politician understands sign language, nor would the majority of recipients of this speech. Thus, we know what the message is saying only after the translation flashes on the television screen. In addition, none of the statements made in this gag even come close to sounding like threats. And, by the time the speakers have spoken, we know there is no threat of danger because no danger has occurred.

But in practice, this skit would be more difficult to pull off. In the United States, it is very rare that an ordinary citizen can get that close to a prominent politician without meeting with one of the politician’s Secret Service agents, and stating his or her purpose before he or she gets within view of the politician. Even then, most appearances with politicians are scripted. For example, when a politician appears with Stephen Colbert, Jon Stewart, or even the gutsier Bill Maher, that politician has an idea of what he or she is getting into, and will not address certain questions. (It is also very possible that the satirists themselves refrain from asking the “rude” questions.) In Australia, these sign language speaking men simply approached unknowing politicians and started signing.

In sum, the balancing test that governs United States free speech cases would tip in favor of the Chaser boys in theory, but not in practice. There is no compelling government interest that would forbid this type of exercise, particularly because what is actually being said is also harmless. However, good luck getting that close to one of our nation’s leaders. Chasers survive.

3. Julian Morrow Presents Check to Australian Wheat Board Executive:

In this skit, Julian Morrow is actually not even harassing a politician. He is harassing an executive of a private company that was hired to do business for Australia. This type of exercise is far more common in the U.S. We see Michael Moore doing it all the time. When a head of a corporation wrongs the population, a purveyor of infotainment is likely to get in the executive’s face.

The difference we see here is that the executive in the skit actually entertains Morrow for quite some time. In the U.S., executives would have put their hand over the camera, run off in a different direction, or threatened to call the police. None of this happens here. The executive just continues about his business saying nothing. What is even more surprising is that the police don’t stop Morrow. In the U.S., the government would call the giant check “symbolic speech” (the check is to a “shady Jordanian trucking company) and police would justify stopping the speech by claiming the speaker disturbed the peace.

The Chasers would be allowed to pull this stunt in the U.S., but whether they would get the same access to an executive is questionable. Since when do executives in giant corporations simply walk in the middle of a crowded city rather than take their limousine?

Unrelated to free speech but also interesting is that when the Australian Wheat Board was caught wheeling and dealing with Saddam Hussein, the Australian citizenry was outraged. However, the U.S. government constantly commits this type of shady financial deal on a much grander scale. In the U.S., we should expect our citizenry to be many times angrier at our government’s financial cheating than the Australian citizens were about this incident. But instead, the press writes a few articles about it, a few liberal politicians complain about it on conservative talk shows (and simply get shot down), and the government tells us we should be ashamed of ourselves for interfering with the free market. American citizens simply have too much respect for the speech freedoms of those who are in power. This is unfortunate, because if you don’t have financial or political power, your word is all you have. Chasers win, but it’s close.

4. “Osama’s Phony Motorcade” at the APEC Summit:

No question about it, if the Chasers pulled this stunt in the United States, the government would have brought on a full lawsuit, and there would be convictions and punishments. Instead of the police simply stopping the speech and making one arrest, the police would have used their guns for sure. If an airport is a high security zone in which a citizen is not even legally entitled to a joke due to the interest in preserving safety, then an international summit housing many world leaders is an even higher one. That “joke” in an American airport would result in an arrest. Surely, the punishment would be more severe at the APEC summit.

It’s possible to prove that the security at the summit would not reasonably believe that Chas Licciardello is not actually Osama bin Laden. However, the costume and the phony motorcade would be viewed as illegal on two counts: first of all, the Osama costume is symbolic speech. Second, the phony motorcade is an action taken. Many past speech cases allow a state and the federal government use the police power to stop an event that is “against the public welfare” (see Whitney and Gitlow).

But the balancing test we use is what worries me about Morrow and Licciardello’s fate in the U.S. The balancing test allows the justices to perceive the severity of the speech act. Unfortunately, in the U.S., we are paranoid about terrorism, and the government’s right to punish speech and ability to do so is highly protected. In Australia, Morrow and Licciardello were supposed to go to court over this incident, but that never came to fruition because the government knew they were only kidding. In the U.S., the government takes terrorist threats so seriously that any suspicion of an act results in an arrest. As we saw in a previous section, merely owning a poster or displaying a bumper sticker can result in a visit from the Secret Service. Undoubtedly, a phony motorcade containing a man dressed as Osama Bin Laden, would result in much more.

My take on this is that the Australian government felt it would look stupid if it tried to go forward in prosecuting what was obviously a joke. It would look stupid because the citizenry wouldn’t tolerate it. Again, in America, we give our government far too many rights. And an illustration of that is as follows: The Chaser’s War on Everything is very relevant to Americans because the show lampoons American politics. Yet, after the APEC Summit incident, about ten countries began to broadcast the show. Not one of them was the United States (see “The Chaser Goes Global,” The Age, October 30, 2007). The U.S. is currently “negotiating” whether we are going to air The Chaser – of course years after these incidents occurred when the speech is reduced to commentary about past events and thus is longer as relevant. End result: Chasers lose big.

5. Firth in America:

Chaser Charles Firth moved to America and produces segments for the Australian show. In one of his most controversial moves, he went to a Hillary Clinton campaign event, and offered his services as Senator Clinton’s “intern” (cigar in hand) right to her face. As you’ll see, he is quickly distanced from the crowd. From that segment on, Charles Firth produced segments that involved only public figures that are not prominent members of the government. Still, security personnel often block Firth from obtaining the footage he desires. In response, the program broadcasts and lampoons Firth’s lack of access to American public figures.

Firth in America – Hillary’s Intern Stunt:




VII. Laughter is the Greatest Weapon, Not the Greatest Threat!

(My Commentary and Conclusion)

To appropriate a lyric from Dennis Leary’s classic song, “Asshole,” other (formerly Eastern Bloc) countries can “have all the democracy they want. They can have a democracy cakewalk right through the middle of Tiananmen Square and it won't make a lick of difference, because we’ve got the bombs, OK?”
Dennis Leary’s Song “Asshole”:



Forget formerly Eastern Bloc countries – here in the U.S., the government treats its citizens the same way. Sure, our public image is that of the “land of the free, home of the brave.” But as Mike Myers (playing Linda Richman on Saturday Night Live) would say, “The United States’ land is neither free nor brave. Discuss.” The truth is, a citizen can run circles around the White House screaming “New York Times v. Sullivan!” all they want; the only person who will respond to them is going to be a member of the Secret Service, to tell this citizen that the First Amendment does not protect such speech.

The problem with the way we decide cases, our “balancing test,” is that the government pumps citizens full of paranoia about their safety by crafting phony “possible” terrorist threats. Then, this same government fails to educate these same citizens about their rights. No wonder the White House wants to control the No Child Left Behind act – because if the government codes into law that the education system shall be distracted from the real issues in favor of proverbial educational masturbation, then there is no risk that a teacher will have any time to teach students anything useful – such as their students’ rights as American citizens (and these days, the Supreme Court apparently does not believe in student rights, anyway – see Morse v. Frederick, 127 S. Ct. 2618 (2007) . Unfortunately, this situation leaves many citizens too afraid to go near the “line” of protected speech, much less challenge it.

Another problem is that this particular administration is paranoid – I can’t even specify about what – just paranoid. And they use this paranoia coupled with the citizens’ shoddy civics education to indulge in their paranoia and their self-preservation at all costs. They also abuse the many implementations of “balancing tests” by stating a government interest in national security. Seriously – like a couple of rolls of toilet paper with the Bush Administration’s pictures on it is going to threaten national security a whole lot more than will depleting our army to preserve Haliburton’s no-bid contracts in Iraq. Toilet paper missiles are by far the greater threat here.

(In case the Secret Service is watching, I was not being sarcastic.)

We ought to take a lesson from the Aussies and learn how to lighten up. They may be a colony full of sheep loving, beach bumming, prisoners, but at least they can laugh at themselves – even most of the politicians can. With no bill of rights in the Constitution and only an implied right to political speech afforded to Australians, the government has a tremendous amount of power. They just choose not to use it constantly under the guise of fabricated terrorist threats. But remember, we were once a colony full of dissidents and iconoclasts. And now we place limits on even the most mundane expressions of dissatisfaction with our government – and even sometimes when we’re “just kidding!” Americans don’t help by refusing to educate themselves and continuing to believe that political speech threatens our security.

We are afraid to go near that line. We are simply terrified to cross it. Thus, Americans are voluntarily giving up their free political speech rights even if there have not been cases to take away these rights. And who could blame Americans for this behavior? It’s easier in many instances not to speak than to receive visits from Secret Service agents, endure a house search, and undergo the hardship of feeling “watched.”

Remember when you were little and you were learning about bullies? Your mom or teacher probably told you to laugh at yourself before the bully can laugh at you. The world is just a giant elementary school playground, and the government is taking away our defense against bullies – our sense of humor about ourselves. Maybe we are a bunch of fat, obnoxious, loud, fashion-challenged over-consumers, and we should be able to laugh about that. The government, and the Americans who still hang on the government’s every word, need to learn to take a joke.