“As tragic as it is that we are in a situation where freedom of speech isn’t as free as we would like it to be at the moment,” [Police Minister] Mr Elliott said.*

When the Sydney Black Lives Matter planned their march in the campaign for justice for George Floyd and Australian Aborigine deaths, they provoked an interesting philosophical dilemma. Put crudely: Does the curtailment of a democratic right take precedence over possible future deaths from Covid-19?

This is a philosophical problem.

Should democratic rights be exercised regardless of consequences? Police Minister Elliott didn’t think so. He said, “freedom of speech isn’t as free as we would like it to be at the moment.”(see above) This is contrasted with protesters who feel free speech is an inalienable right, such as the right to life. Is free speech inalienable or it can be curtailed if it’s likely to cause harm? Elliott’s claim is possible future deaths do supersede the right to free speech.

The paradigm of the curtailment of free speech is a person shouting, ‘Suicide Bomber’ in a mosque at Friday prayers when there isn’t a threat. There’s the right to shout ‘Suicide Bomber’ with just cause, but otherwise not. Free speech is curtailed because shouting ‘Suicide Bomber’ will generate panic and injuries by those attempting to escape. Scaremongering, consequently, is illegitimate. Not causing harm is a moral imperative. This is Elliott’s position though he does recognise that it’s “tragic”. The question which must be asked is, ‘what types of free speech cause harm’? Nineteenth century philosopher J.S. Mill took incitement to violence as his point of legitimate curtailment. On this point Mill is entirely clear, free speech is curtailed.

Was Sydney’s Black Lives Matter march the equivalent of shouting, ‘Suicide Bomber’ in a mosque? The marchers weren’t inciting acts of violence. Indeed they’d knowingly placed themselves in a dangerous situation. The consequences of the march for others were possibilities, not certainties. Marchers were altruistically advocating opinions benefiting people in a foreign country: the USA.

Does the motivation of marchers relieve them of responsibility for future possible harm? Covid-19 is a pandemic, which is especially lethal to certain sectors of the population including BAME.

Let’s imagine some of the thousands of marchers do indeed catch Covid-19. They’ve become carriers. None of the marchers self-isolate and continue their daily routines but those infected don’t know they’re infected. Currently as of June 11^th 2020, ten people may legitimately meet together in Sydney, so the marchers can meet nine additional people each per day. The police estimate 20,000 marchers** implying a maximum contact ratio of 180,000 per day during the incubation period. Obviously this figure will be inflated by double counting but it colours Elliott’s comment.

The incubation period is a minimum of five days and could be 14. The 20,000 marchers therefore are a ticking time bomb. Even a tiny number of the marchers being infected could pass on the virus to dozens of people. Of those infected, about 0.5% will die. Elliott’s point is this: people will die because of the march.

This is a version of the ‘Trolley Problem’. In the ‘Trolley Problem’ a person has to make a decision to save the lives of five people or cause the death one person.*** For the Sydney march the argument goes like this,

‘If we protest we may change attitudes and save an unknown number of black lives from egregious conduct by racist police in the future.’

On this reading, future lives will be saved against the certainty of consequential deaths in Sydney in the immediate future – June-July 2020. Elliott’s position was overturned in the Supreme Court but I think he was on the right track.

The Sydney march is very interesting. It’s to be applauded as a stirring example of political activism but it wont make a decisive intervention in the American Black Lives Matter campaign. There’s also a significant downside in terms of subsequent deaths. Elliott is, in my judgement, correct. Free speech should have been curtailed on this occasion.

Notes

* https://www.smh.com.au/national/nsw/thousands-take-to-sydney-s-streets-in-black-lives-matter-protest-20200606-p55043.html

** Police estimates are notoriously conservative and so this figure is a minimum.

*** https://www.theguardian.com/science/head-quarters/2016/dec/12/the-trolley-problem-would-you-kill-one-person-to-save-many-others

Sources

For the Sydney Black Lives Matter protest see https://www.smh.com.au/national/nsw/thousands-take-to-sydney-s-streets-in-black-lives-matter-protest-20200606-p55043.html

For the George Floyd incident see https://edition.cnn.com/2020/06/05/us/minneapolis-officers-background-george-floyd-trnd/index.html

For J S Mill on free speech and harm see https://plato.stanford.edu/entries/freedom-speech/ section 2

For the current Covid-19 restrictions (7^th June 2020) see https://www.theguardian.com/australia-news/2020/jun/05/coronavirus-australia-lockdown-covid-19-restrictions-how-far-can-travel-social-distancing-rules-nsw-victoria-queensland-qld-wa-sa-act-how-many-people-over-house

For the Sydney march see https://www.bbc.co.uk/news/world-australia-52947115

For the incubation period see https://www.who.int/health-topics/coronavirus#tab=tab_3

For the Trolley Problem see https://www.theguardian.com/science/head-quarters/2016/dec/12/the-trolley-problem-would-you-kill-one-person-to-save-many-others