I am a quintessential liberal (with a small ‘l’) in relation to religious belief. I don’t much mind what someone else believes, as long as they (a) don’t harm others and (b) leave me well alone to my own rather quirky beliefs. One thing I particularly dislike is being preached at. The more someone tries to persuade me that I must believe in their particular religion, the less likely I am to accept said religion. I can’t stand the feeling that someone is trying to force me to adopt a particular belief, and I dig my heels in hard. Consequently, any kind of public approach to try and recruit me is likely to turn me off big time.
One of the challenges for someone with liberal beliefs has always been the question of how far one ought to tolerate the intolerant. Our political system is predicated upon freedom of speech and freedom of belief; but what if the person who claims free speech wishes to suggest that other rights of the general population, such as freedom of religious belief, freedom of sexual preference or freedom of women in society should be abrogated? A stark example is alleged Islamist suicide bomb plotters protesting that they are entitled to human rights when being arrested, when, if the allegations are true, the plotters intend to disregard the human rights of random innocent people in a bloody and violent manner. Somehow it rather sticks in the craw to hear such people protest about their rights, but that is the dilemma of human rights; you can’t just award them to people whom you like or with whom you agree.
Adelaide Now reports that the Full Court of the South Australian Supreme Court has just heard a case which raises some of the issues discussed above:
Banning preaching on city streets interferes with fundamental human rights and conflicts with international law, a court has heard.
A group of Christian street preachers today asked the Full Court of the Supreme Court not to re-instate a by-law keeping them out of Rundle Mall.
Preacher Caleb Corneloup, for the group, said Adelaide City Council’s regulation must not be allowed to stand.
“Councils have the power to make by-laws for the convenience, comfort and safety of their inhabitants,” he said.
“But does that give them the authority to infringe upon the rights of freedom of speech and freedom of religion?
“The protection of those concepts is established under international law, and to prevent preaching on every single street in Adelaide is to effectively prohibit those fundamental principles.”
The preachers have been feuding with the council since 2007. Shop owners claim the group “shout and scream slanderous things” through amplifiers, including “Muslims are dirty” and “you are all sinners who will be killed by God”.
Last year, the council passed a by-law prohibiting “preaching, canvassing or haranguing” on “any street or thoroughfare without a permit”.
The District Court subsequently ruled that by-law invalid a decision the council has appealed in the Full Court of the Supreme Court.
Today, Mr Corneloup said Australia was a signatory to many human rights charters.
The nation’s laws, he said, must therefore be “in conformity, not conflict” with those documents.
“Imagine if every council in South Australia passed by-laws like this,” he said.
“That would be a huge interference with the rights of the people of this state.
“To prohibit preaching on every single street in Adelaide is a huge, unreasonable interference in people’s rights.”
Now, I can imagine that if I was a shop owner, I’d be mightily peeved to have these fellows preaching outside my shop, particularly if I had to hear them shouting imprecations to passers-by day after day after day. I don’t much like to be subject to such rants as a passer-by either. A part of me wonders how many converts these preachers actually make, and whether such preaching in people’s faces is counterproductive, actually driving people away from religion. It definitely turns me off.
The difficulty is this: in my opinion, I don’t have a right to tell these men not to speak merely because they are offensive to me, much though I might like to tell them to go away. As I’ve noted before, such a view sounds more attractive in the abstract. There are times when my instinct cries, “These people shouldn’t be allowed to say this!” and my reason cries in response, “But if we allow such views to be suppressed, what other views will be suppressed? What views of my own are unpopular? I do not believe that another has the right to force me not to speak such views.” Still, in keeping with my liberal mentality, I’d never force my views on others. I write of them on the blog, but people are free to read or not to read, and they are also free to disagree with me (as long as they are polite). I would never stand on a street corner with a megaphone telling people they had to believe as I did or risk eternal damnation.
Ultimately, I decided that these preachers do indeed have a right of freedom of speech in public areas as long as they do not harm others. Of course, there’s a nice question of whether they incite hatred against people of other religions. Mere offence is not enough to prevent the speech in question, but inciting hatred against a group is not on, in my opinion. It can be very difficult to make that distinction. Anyway, let’s presume for present purposes that they do not incite hatred against a particular group.
As is my wont, my thoughts on this issue went down a private law path. People often think that the catalogue of our rights can only be contained in a Charter of Rights or something of the sort, but this is not so. Many of our fundamental rights emanate from private law and the common law: as I’ve said before, private law makes the wheels of society go around. These rights are so fundamental that they get taken for granted. I reasoned that the surrounding shop owners also have a private law right not to have their enjoyment of their land unduly interfered with. There is an action known as private nuisance where a person can prevent an unreasonable interference with that person’s use or enjoyment of a proprietary right in land: Hargrave v Goldman (1963) 110 CLR 40, 49 (Windeyer J). If these preachers are so loud and objectionable that they are turning customers away from the shops and they are preventing the shop owners from enjoying their properties, then arguably they are unreasonably interfering with the shop owners’ rights to enjoyment of their shops. I’m presuming the shopowners are all lessees or owners with exclusive possession, but even mere licensees have rights too. Noise, smell, vibrations and heat all constitute damage to the utility of the land. In Hunter v Canary Wharf  AC 656 at 688, Lord Goff approved a description of nuisance by Professor Newark:
In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them from taking their ease in their gardens.
Of course, then a court has to balance the rights of the plaintiff against those of the defendant. So the question would then be: do the rights of the shopowners take precedence over the rights of the preachers? I tend to think that the interests of the shopowners should prevail, as long as the preachers are still free to express their views in other ways which do not interfere with the shops so much. The preachers can hand out leaflets, they can wear sandwich boards or they can ask passers-by to discuss the matter with them quietly (although I’m guessing most passers-by would just run). Hey, they can even write blogs (I wonder how many of the unconverted would visit them, though?)
Would the preachers have been banned had they been less aggressive in the way in which they expressed their views? I suspect not. To my mind, the difficulty is not so much in the nature of the views expressed, but in the loud and unpleasant manner in which they are expressed. These people are free to have the views that they do, and to have the religion that they choose. But they can’t shout and scream so loudly that they interfere with people’s proprietary rights in their shops. If they want to find a way to communicate these views, my personal opinion is that they should find a way which doesn’t infringe on the private rights of others so greatly. Maybe they should be reminded that, according to their own beliefs, the meek shall inherit the earth (not the people with great big amplifiers)!