Katharine Gelber, associate professor in the School of Political Science and International Studies at the University of Queensland, sampled the attitudes of sixteen citizens and from that minuscule sample has developed some generalisations. While the sample seems too small to justify such generalising, any defender of free speech will attest that she has found a representative group. It is true that most people think free speech is a fine concept, just as long as you don’t go too far.

While Gelber begins by asserting that ‘Free speech is a vital democratic freedom’, and worries that ‘whenever an expression is seen as hostile, controversial, or difficult or challenging, we have a tendency to want to shut it down and silence it’, she is herself a drawer-of-the-line. She believes in the absolute right of the citizen in a democracy to burn, deface, or otherwise use the national flag to protest against government and its actions, but Gelber would make it illegal to wear the flag as a symbol of jingoistic exclusivity, as happened during the Cronulla fracas. She would even have banned the broadcast of the sillyblackface sketch on Hey! Hey! It’s Saturday! that offended Harry Connick Jr (not Robert Downey Jr, as she writes).

She is a soft-left defender of freedom of speech. She favours complete freedom, as is protected by the first amendment to the United States constitution, except in those cases where someone’s feelings might be hurt. So she favours the laws that prohibit racial, sexual or religious vilification. She is no absolutist.

Gelber appreciates the anomalous consequences of over-zealous protection of sensibilities. In 2009 the Adelaide Holocaust denier Fredrick Töben was sent to jail for three months. He had refused to comply with a court order to remove from his website material to which Jewish individuals and groups had objected. He was not imprisoned for breaking anti-vilification laws, but for contempt of court for failing to obey an order.

Was the experience of prison likely to change his mind? Hardly. Would he emerge an embittered man, seething with a sense of injustice? Certainly. Should he have been prosecuted in the first place? Gelber thinks so. Yet Töben’s crime was not to vilify anyone but rather to assert something as fact that could be proved to be either true or untrue. Should we treat historical inaccuracy as a crime? If a Turkish historical revisionist were to claim that the Armenian massacre had never happened, would he be charged? Probably not.

Gelber deals with the issues of abuse of power in stifling political protest. Corporations such as the Tasmanian forestry company Gunns have used speech-restricting laws to silence objectors to their business practices. The Gunns Twenty case is an example of a company intimidating its critics into silence with the threat of legal action that has the potential to bankrupt defendants. These so-called SLAPP – Strategic Litigation Against Public Participation – actions are now expressly outlawed in the ACT by a law that Gelber says should be copied by all the states and territories.

Politicians can stifle speech and prevent criticism, scrutiny, and protest either directly or indirectly. The preferred direct method of silencing the citizen is the defamation action. As one High Court judge observed in the case of Theophanous vs Herald and Weekly Times: ‘the use of defamation proceedings in relation to political communication and discussion has expanded to the stage where there is a widespread public perception that such proceedings represent a valued source of tax-free profit for the holder of high public office who is defamed and an effective way to “stop” political criticism, particularly at election times. Indeed, the phrase “stop writ” has entered the language.’

Politicians can distance themselves from responsibility for censorship by leaving it to the police or to local government. Gelber cites the vigorous denial of the right to assemble at the 2007 APEC Leaders meeting in Sydney. The act giving wide powers of dispersal and prevention of entry to the police was as good as a wink. Gelber’s sixteen representative citizens think this is fair enough.

Local government officials can also be counted on to do their censorial duty. Zanny Begg, an artist, had her outdoor exhibition Checkpoint for Weapons of Mass Distraction (2004), hosted by the University of Western Sydney and the Blacktown Arts Centre, shut down because some zealous minor council official, backed by the mayor, took exception to her anti-war message. This was much like the removal of the burned and tattered flag created by Melbourne artist Azlan McLennan, which he exhibited with the label Proudly UnAustralian (2006). When an unknown person complained, the police removed the offending item from the gallery. The McLennan fiasco moved Bronwyn Bishop MHR to try to have flag destruction and defacement criminalised. Hers was one of several attempts to make criminals of flag burners, but the majority of federal parliamentarians wisely declined to join in. After all, what do they have to worry about? The informal and widely accepted mechanism of censorship is working well enough.

There is no guarantee of freedom of speech in our constitution. In some cases the High Court has found an implied protection, ruling that as the constitution envisages the nation as a democracy, and as democracy cannot function if political argument is impeded, then the drafters of the constitution must have taken freedom of speech for granted. This is convenient eyewash.

The Australian constitution is derived, in part, from that of the United States. The American constitution says, in its first amendment, adopted in 1791, that: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ Our constitution includes the prohibition of the establishment of a religion, so why did the drafting convention not take the first amendment in its entirety? Clearly they thought it was a revolutionary concept best left out.

The United States has a system of government that is constitutionally weak at the centre and powerful at the periphery. Our constitution begins with the acknowledgment of the beneficence of the monarch in letting us have any sort of self-government. Our system is constructed to be all-powerful at the centre and impotent at the periphery. And if Gelber’s sample of sixteen speaks for the nation, then that’s the way we like it.

On the subject of flag-burning, the sixteen were largely in agreement: if you must do it, do it where no one can see you. Jennifer says: ‘They should be stopped from doing it in a public place with children around … and have their own little flag-burning ceremonies [in] backyards. If it was to happen in a public place then they should be charged and made to apologise to the people they have offended … ’ There is something profoundly, obsequiously, stupidly Australian in that single sentence. You can say whatever you like about anything you like as long as no one can hear you and you don’t block the traffic. I am grateful to Gelber for confirming what I have long suspected.