A one-time dumping ground for British convicts, Australia has never been renowned for gentle manners or delicate speech. So perhaps it shouldn't come as a surprise that, when it comes to certain freedoms, the federal government has something of a bunker mentality.
But in a case involving four former editors of Rabelais, a student newspaper at La Trobe University in Melbourne, free-speech advocates say the government has gone off the deep end and may carry their crusade into cyberspace.
A low-circulation student rag, Rabelais gained national notoriety in 1995 when the four editors, Melita Berndt, Michael Brown, Ben Ross, and Valentina Srpcanska published "The Art of Shoplifting," a step-by-step guide to the finer points of petty theft. In addition to practical tips such as keeping one's back to security cameras and carrying a little extra cash in order to claim the crime was just a whim, the guide contained more whimsical hints about wearing "whatever you want" and the best spots to practice the craft. According to the guide, "the lingerie department is ideally suited to male shoplifters - not only is it the perfect excuse for looking embarrassed or suspicious ... but staff are less likely to harass you by trying to help you."
A rather sophomoric spoof, the story nonetheless raised the ire of the Retail Traders Association, which in turn brought the story to the attention of Australia's all-powerful Classification Review Board.
The next-best thing to a national censor, the Australian Classification Review Board is charged with the modest task of regulating all films, videos, and computer games, as well as any publications "a reasonable adult" would consider unsuitable for minors because they depict sexual activity, nudity, or violence, or unsuitable for adults because they could "promote, incite, or instruct in matters of crime or violence" or "promote, incite, or encourage the use of prohibited drugs."
After running up against the board, Rabelais student editors' lives turned Kafkaesque. The story was banned. Shortly thereafter, the editors were arrested, fingerprinted, and photographed. Some months later, they were charged with violating the 1990 Victoria Classification of Films and Publications Act. Last month, after seeing their case twist and turn through the country's legal system for two full years, the students seemed to hit the end of Australia's legal tether: A Federal Court justice dismissed their appeal. Each was left staring down a possible six years in the slammer and A$24,000 in fines.
Strangely, the judge cited a landmark US Supreme Court decision as a high-water mark for determining how free free speech should be. "Words which incite men to crime are themselves criminal and must be dealt with as such," decreed the Australian Court in its 6 June decision. "See also Brandenburg v. Ohio 395 US 444 (1969) at 447."
Enter Irene Graham, an Internet-savvy Australian who followed the case from the start. Concerned that the censorship standards that apply to offline Australia were on track to be extended into the online world, Graham posted missives about the state of Australian free speech to Declan McCullagh's Fight Censorship list. Then, when the Federal Court handed down its decision on the Rabelais case, Graham turned to Fight Censorship for help.
"I was astounded to read in the court decision that the [Australian] Federal Court [j]udge referred to the lack of protection, *specifically under the US First Amendment*, [for] the speech contained in the shoplifting article," she wrote in one post.
"The student's lawyers are considering an appeal to the full Federal Court," she wrote in the next. "They seek any information on ... case law - anywhere in the world - which could be put forward as a precedent."
Fight Censorship went nuts. Tips poured in.
Brandenburg, Graham was informed, implies exactly the opposite of the Australian Court's interpretation. Under the decision, even speech advocating crime merits the highest degree of constitutional protection, "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Armed with that information, the Rabelais editors appealed and expect to go before the full federal court this fall.
"I think it's not until one has a 'dire' need for rapid information from the other side of the world, [sic] that one truly appreciates one of the generally unsung values of a list like f-c," Graham wrote. "I believe it's fair to say that it is unlikely that they would have [gone back to court] were it not for the information provided."
As for how the case will play in terms of free speech Down Under, Graham says the outcome may have significant ramifications. A favorable decision could help advance "an (almost nonexistent) right to free speech in Australia, both on- and offline."
