Tolerating the intolerant

By Legal Eagle

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 [1997] 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)!


  1. Mel
    Posted March 19, 2011 at 9:20 am | Permalink

    “It’s not based on a strict ideology, it’s based on convenience.”

    Specifically, the convenience of white people and the inconvenience of brown people.

  2. Posted March 19, 2011 at 9:46 am | Permalink

    [email protected] First, I never implied it was “ok”.

    Second, I don’t know about you but I wasn’t around when it happened. Since my original ancestors (patrilineal line) came out as convicts, they did not have a lot of say in it either. (In fact, my original male ancestor refused to continue to guide a punitive expedition because the officer in charge just shot at any black folk who got in range, not the specific perpetrators of the original attack.)

    For information, my matrilineal ancestors came out from Provence for the gold rush in the 1850s, by which time most of the dispossession was done. (Yes, I am a walking cliche of Australian history.)

    This reification of groups and allocation of group guilt is not only lazy thinking, it is vicious thinking. (Blood guilt of Jews anyone?) Surviving Tasmanian aborigines are of mixed race parentage: why does one set of ancestry count and the other does not? And so on.

    [email protected] You really are a simple-minded fellow, aren’t you. First, the original settlement at Sydney Cove was multiracial (race based on skin-colour had not yet acquired its burning importance, so the multi-racial nature of the original settlement was an unremarkable fact: once travel became safe enough for white women en masse, the notion that inter-racial marriage was a bad thing became much more established — white women objected to the competition: the gender version of the tropical v temperate zone labour flows which were such a C19th concern for settler working classes).

    Second, the common law was the structure the invaders brought with them. Nothing to do with racial convenience and everything to do with relative power and historical provenance. Any legal claims can only be made within that structure, so talk of property rights without it has become moot. (Mabo, for example, represented common law reasoning: I have been reliably told that even Scalia J thought it unremarkable common law reason in its principles.)

    If it is such a burning issue for you, feel free to donate your property to some randomly chosen person with some indigenous descent.

  3. Posted March 19, 2011 at 10:34 am | Permalink

    Re [email protected]: well said [email protected]

    It matters what proportion of colonial officials had at least some intent to do something good for the locals… however politically incorrect these days “bringing civilization to the natives” is, motives matter.

    At least the British, unlike some colonial powers, didn’t rip up train tracks when they left. Can you imagine the Belgians or Germans, if in control of India, making a big thing about the evils of suttee? I can imagine there were many of the same comments about the British as found in Life of Brian about the Romans “apart from railroads and law courts and schools and cricket, what have the Brits ever done for us?”

    Dare I say that post-modernists should give some sympathy to well-intentioned governors and viceroys of a century ago, treating them as some kind of sub-altern to modern views?

  4. Posted March 19, 2011 at 11:08 am | Permalink

    [email protected]:

    Specifically, the convenience of white people and the inconvenience of brown people.

    I think it’s more about the conveniences of those who currently own the property, i.e. the golden rule.

    [email protected],

    I wasn’t suggesting that responsibility is some how inherited either biologically or culturally (although there could still be an argument about unjust enrichment). However my point was that if you begin to add exceptions or conditions to property rights to justify historical outcomes then it stops being a simple or elegant ideology.

  5. Posted March 19, 2011 at 12:02 pm | Permalink

    I am a street preacher from Rundle Mall actually agree with alot of what Legal Eagle is saying, especially on the common law tort of nuisance. The problem however is that He/She has failed to reconize the history of the matter. For two years the preachers did not use any amplification at all, and only came once a week for 2hours. They also moved to various locations. Having said that it becomes obvious that no action for public or private nuisance could be brought against the preachers.

    During that two years the Adelaide City Council unlawfully urged the police to arrest the preachers for breaching their unlawful by-law. This happened continuelly even though the group was made up of nice quiet Christians who would never hurt anyone.

    Everyone was afraid, elderly men and women, wives and young children. Now I watched all this often and frequently seen shop staff mocking and laughing at them when they were arrested.

    It would be morally wrong for me and those others who now preach with me in Rundle Mall to not go and blast the place! It would be morally wrong for me as a Christian to NOT go and do what we have done for the last two years. We will quiet things down when the Council backs off.

    Further more it is because of Christian tollerence in early Australia that you even have the right to believe whatever you believe. Christians have been preaching in public for two thousand years, including the preaching of hell and judgement.

    Also there is no hate speech this is just another wrong on behalf of the Adelaide City Council and the shopowners. None of the comments alledged are true, other then the highly immoral practice of murdering unborn children in the womb. Don’t tell me you are moral if you agree with murdering children!

  6. kvd
    Posted March 19, 2011 at 12:19 pm | Permalink

    desipis –

    my point was that if you begin to add exceptions or conditions to property rights to justify historical outcomes then it stops being a simple or elegant ideology

    If you change “begin” to “have” in the above then I think I agree with that statement.

    However, both Mel and Lorenzo – in their own ways – picked up on the “blame” factor introduced by your 50 above. FWIW, I think that comment distracts from what you say is your real point.

  7. Posted March 19, 2011 at 2:41 pm | Permalink

    [email protected] Indian appreciation of the British is a continuing thing. Both Nehru and Gandhi, for example, were appreciative of aspects of what the British brought. Ibn Warraq has a nice discussion of this in his Defending the West. This is very much not the same as some sort of nostalgia for foreign rule. (Democratic India has avoided famines, for example, as Amartya Sen is fond of pointing out.)

    [email protected] First, I pointed out a difficulty in JCs comment. Second, the question is not about justifying any historical outcome, but pointing out that property rights in the Australian context mean common law (as amended by statute). One can construct all sorts of historical what if’s, but that is the practical reality.

    There is a basic problem with many of these historical what ifs anyway, in that they are based on some Lockian notion of “mixing your labour”. Property is all about control, it is taking control of something which turns it into property. Exchange is a swapping of control. So there is a whole set of issues about defining boundaries, arbitrating disputes, etc.

    Property rights are typically based on some implicit or explicit legal order, even in hunter-gatherer bands. Any notion of extra-legal property rights is going to be a very basic and attenuated one. The sort of thing one sees in black markets, for example. Even there, one could argue they are parasitic on a wider legal order (even beyond being “made black” by being formally excluded from it) or have evolved their own, or a mixture of both.

    What most differentiates us from our primate relatives is that we acknowledge ownership of things. From that almost everything that is distinctively human (as distinct from merely primate) flows. But acknowledgement by others is the key thing in property, hence the importance of implicit or explicit legal orders.

    So the argument here is all about real or alleged (given arguments about what rights indigenous Australians themselves acknowledged) failures to acknowledge property rights. With common law being the compulsory mechanism of acknowledgment that the British imposed on the continent. Arguments about the imposition in terms of specific property rights claims are a bit moot (what decision-making mechanism applies?), which leaves practical argument to being within that structure.

  8. Mel
    Posted March 20, 2011 at 9:29 pm | Permalink

    Lorenzo sez:

    “What most differentiates us from our primate relatives is that we acknowledge ownership of things.”

    I sez:

    You appear to be generalising based on your own rather unique experience.

  9. Nick Ferrett
    Posted March 21, 2011 at 12:45 pm | Permalink

    Given that the concept of private property is not universally acknowledged (and denied by a significant number of people), I think there are more obvious distinctions between us and the apes.

  10. kvd
    Posted March 21, 2011 at 1:50 pm | Permalink

    Lorenzo: “What most differentiates us from our primate relatives is that we acknowledge ownership of things.”

    Encapsulates my basic dislike of my daughter’s first boyfriend. Thanks Lorenzo!

  11. Patrick
    Posted March 21, 2011 at 5:33 pm | Permalink

    Building on kvd’s comment, I am not sure if Nick Ferrett is being generous enough to Lorenzo’s subtlety.

    I for one hope it was deliberate and certainly agree!

  12. Posted March 21, 2011 at 7:23 pm | Permalink

    Actually, ownership of tangible things, is common to many primates, and other hominins have even demonstrated an understanding of unfair contracts – (rejecting a deal with an experimenter if another of their species is only offered a far inferior deal).

    What differentiates us from other hominins is their wise refusal to develop banking and priestly classes.

  13. Posted March 21, 2011 at 7:34 pm | Permalink

    [email protected] Other primates can be induced to engage in exchange in laboratory situations. (That is, they are capable of receiving some transmission of our culture.) There is no known case in the wild.

    [email protected] + [email protected] There is no known human culture which does not incorporate some notion of personal ownership, even if just of tools and clothing.

    Notions of ownership of land is a whole ‘nother complication which varies enormously between human cultures.

  14. Posted March 21, 2011 at 7:37 pm | Permalink

    Also, evidence suggests that trade between human groups is about 10 times older than agriculture. There is no such pattern amongst any other species, primate or otherwise.

  15. Mel
    Posted March 21, 2011 at 8:43 pm | Permalink

    “There is no such pattern amongst any other species, primate or otherwise.”

    Fiddlestix. Symbiotic relationships are trades and they are numerous in nature.

    “There is no known human culture which does not incorporate some notion of personal ownership”

    So what? A noisy miner colony will vigorously defend its favourite trees (property) from visitation by other birds, so much so that these trees often die because insectivores can’t “cleanse” them of pests. This is roughly equivalent to the concept of property rights displayed by tantrum throwing two year old Homo sapiens and their much older but rarely wiser intellectual equivalents, namely libertarians- “it’s all mine you can’t have any waah! waah!”.

  16. Movius
    Posted March 22, 2011 at 12:40 am | Permalink

    Fairly certain there are animals that will trade, but none other than homo sapiens that will trade more than object for something. (eg. a monkey will not trade 2 tree branches for one banana) But I’m basing this on a combination of reading on experiments and random hearsay.

  17. Posted March 26, 2011 at 11:50 am | Permalink

    [email protected] If you want to get down to it, every single multi-celled organism is a mass of symbiotic relationships. So, they involve some form of exchange, but that is not trade (in the sense of negotiated exchange) in the normal meaning of the term.

    Some animals, either collectively or individuality exhibit territoriality. Which is clearly where sense of ownership starts. But it a pattern of mutual exclusions, not the basis of exchange.

    [email protected] That primates can be induced to engage in trade in laboratory conditions makes their failure to do so in the wild even more striking.

  18. Posted March 26, 2011 at 3:24 pm | Permalink

    [email protected] said “[email protected] That primates can be induced to engage in trade in laboratory conditions makes their failure to do so in the wild even more striking.”

    Actually, there is support for common sayings about human socio-economic history – food in exchange for the services of the oldest profession.

    (besides, with tongue firmly in cheek, understanding and engaging in trade when among humans could be like one of our anthropologists learning to make fire by rubbing sticks together or engaging in propitiatory offerings to the gods when staying with hunter-gatherers in the jungle)

  19. Movius
    Posted March 26, 2011 at 11:42 pm | Permalink

    @67 I was sure that trading in the wild had been observed (in multiple genus) too. Though The fact that I’m not certain and can’t find sources at quick notice suggests that, at best, it’s hardly a common behaviour .

    I had thought that the main difference between humans and the trading of other animals was the ability to trade many objects at once, or even just many for one. eg. You can train a monkey to trade a rock for a banana. But you can’t train them to trade one rock for a big stick and two rocks for a banana.

    One interesting thing I had heard, and my source here is a relatively recent episode of the Weird Things podcast so it MUST be true, is that this is speculated to be a key difference between Homo Sapiens and Homo Neandertalis.

  20. Posted March 27, 2011 at 12:29 am | Permalink

    “What most differentiates us from our primate relatives is that we acknowledge ownership of things.”

    Take the bone off the dog. Ownership is very common in animals. They declare ownership of territories, of nests, of food … . If there is one striking feature that differentiates us from other primates it is our allocentric capacity. See:

  21. Mel
    Posted March 28, 2011 at 10:20 am | Permalink

    “What most differentiates us from our primate relatives is that we acknowledge ownership of things.”

    Comments like that merely demonstrate the narrowness and sterility of the libertarian mindset.

  22. Posted March 30, 2011 at 8:29 pm | Permalink

    Thanks everyone for the comments, very helpful. John H in particular, that lecture is very informative.

    First, the key thing in property is not “mine”, “ours” that is just territoriality. The key thing in property is “yours”, “their’s” and, in particular “yours”, “their’s” even if I/we have the power to take it from you. That is, it is the acknowledgement of legitimate control by another. (Whether it is individual or group property is irrelevant to this larger point: either form builds on it.)

    Clearly, property builds frm territoriality, but extends it much further. Much as Robert Sapolsky talks about in various realms: humans take something common to other species and then we extend it much further than other species do.

    There is exchange of favours among animals: typically sex and grooming. Again, trade in objects builds on that and takes it much further.

    In my original statement, I was thinking of how much our social dynamics and possibilities builds on our productive possibilities, which are enormously increased by our ability to trade; to “truck and barter” as Adam Smith put it.

    Taking all the ways Sapolsky talks about human differences, they all either manifest, or are greatly expanded in their possibilities, by the notion of property, of legitimate control, and the capacities let loose by that. “Ideas having sex” as Ted Ridley so memorably put it.

  23. Posted March 30, 2011 at 8:30 pm | Permalink

    That should be ‘manifest in’.

  24. Posted July 17, 2011 at 12:27 am | Permalink

    The by-law was found invalid in the District Court and we await the judgement in the Full Supreme Court.

    There is also a case in regards to private and public nuisance however, it will be struck out if the Supreme Court rules in favour of the street preachers as the councils have instigated the nuisance case and certain sections of the local government act excludes councils from having common law rights over public land, vested to them to look after.

    Also the validity of the by-law was not because of the constitutional argument but statutory arguments, like no signed certificates, broad interpretations of the local government act that infringed on common law and international law rights and finally no express permission from parliament to infringe on common law rights etc.

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  1. By Skepticlawyer » Property and animals on May 9, 2011 at 2:58 pm

    […] A while ago back on the blog, we were having a debate about whether the idea of property, and private property in particular, is a peculiarly human thing. […]

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