Freedom of speech is not freedom from ethics: the 2019 Israel Folau media controversy as a case study

Abstract

This article examines how freedom of speech is framed in the media controversy surrounding the Australian rugby player Israel Folau’s April 2019 Instagram post. A content analysis and framing analysis of newspaper reportage reveals that the controversy has been largely discussed in terms of whether or not Folau’s speech was being curtailed and whether this curtailing indicates a broader, ideologically motivated censoriousness. This discussion is problematic in that it says little about the actual substance of Folau’s post. This article argues that debates surrounding freedom of speech such as the one involving Folau could and should be enriched by an engagement with ethical principles. This engagement is premised on a commitment to the free exchange of views, while acknowledging that ‘speech’ is not always inherently beneficial for democracy, nor worth defending.

Keywords

ethics framing freedom of speech journalism media controversy

On 10 April 2019, the Rugby Australia (RA) player Israel Folau posted a graphic to Instagram that read (in part): ‘Warning: Hell awaits you. Repent! Only Jesus saves’. Folau listed ‘homosexuals’ as one of the groups that required saving. Folau denied accusations of homophobia, instead describing the post as an expression of his conservative Christian faith. Nonetheless, in May 2019, RA terminated Folau’s contract.

Media reportage on the Folau case has been polarised. Some commentators have argued that his sacking was justified by the harmfulness of his post to LGBTQI (lesbian, gay, bisexual, transgender, queer and intersex) people, by the negative impact of the post on RA’s public image and because the post allegedly breached the terms of his employment contract. Other commentators have argued that Folau was penalised for expressing unpopular but essentially unharmful views. Some exponents of the latter argument have framed Folau’s sacking as (yet) another example of free thought being silenced by left-wing censoriousness.

This article suggests that the focus on whether or not Folau’s freedom of speech has been impeded and/or punished has elided a closer examination of the ethical dimensions of Folau’s Instagram post and its aftermath. Such an investigation would involve examining the specific media context in which the speech was produced and asking why exactly this speech might be regarded as problematic. The article concedes that speech is far from always and only worth defending, and that it does not always enrich either democracy or public discourse.

This article begins by situating the Folau controversy within the context of media controversies surrounding free speech, and its apparent endangerment, that have been unfolding in Australia since 2011. The article then combines content analysis and framing analysis to analyse the ways in which the Folau case has been reported on in six Australian newspapers. This coverage provides an insight into how the controversy has been commonly debated in this nation’s public sphere. The article’s final section poses the following research question: How can controversies such as the one surrounding Folau’s Instagram post be reframed and made more insightful via an investigation of the ethics of the speech being reported on? The authors argue that integrating ethical considerations into an analysis of the Folau controversy will allow us to move beyond the free speech/censorship impasse that debates such as the one under examination have been mired in.

Contextualising the Israel Folau controversy

In a 2019 article, journalism scholar Denis Muller asks ‘how, in the digital world, might the blessings of free speech be maximised while the curses of its excesses be minimised?’ (p. 3). Muller’s question is pertinent when considering the Folau controversy. This controversy is one of several that have arisen in Australia since 2011 concerning free speech. The earliest of these concerns was the Eatock versus Bolt case, in which the controversial, right-leaning columnist Andrew Bolt was found to have contravened Section 18C of the Racial Discrimination Act via several 2009 media articles about fair-skinned Indigenous Australians (Jose, 2020). Bolt described 28 September 2011 (the day upon which the verdict was reached) as a ‘terrible day for free speech in [Australia]’ (cited in Aggarwal, 2012).¹

In the ensuing years, the twin spectres of ‘freedom of speech’ and ‘censorship’ were invoked in media controversies encompassing matters that included a cartoon published in The Australian (the national broadsheet) featuring a racist caricature of an Indigenous Australian man (Bond et al., 2018: 5; Power, 2017) and conservative opposition to same-sex marriage (Berg, 2015).

The most striking aspect of the aforementioned controversies is how certain issues are reframed as disputes between polarised sides (e.g. ‘left’ vs ‘right’), with the underlying suggestion that one ‘side’ is being silenced by the other. Framing involves ‘select[ing] some aspects of a perceived reality and mak[ing] them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described’ (Entman, 1993: 52, emphasis in original). The framing that has just been described is redolent of the culture wars that have played out throughout the Anglosphere since the late 1980s (Busbridge et al., 2020; Davis, 2019; Robinson, 1997). As Finley and Esposito (2020: 180) argue, culture-wars framing ‘minimize[s] very real concerns and shuts down both conversation and actual action’ against injustices and inequalities (Finley and Esposito, 2020: 180).² Furthermore, this culture-wars framing reduces complex issues and specifically, differences of opinion about those issues to rigid binaries: ‘for’ and ‘against’, ‘free speech’ and ‘censorship’, ‘left-wing’ and ‘right-wing’.

As a further example of the culture-wars framing described above, consider the following passage from a 2019 op ed article published in The Australian concerning the Australian Press Council’s³ introduction of language to assist journalists reporting on LGBTQI issues:

Australia is sleepwalking into a state of political censorship. While major media organisations have united to defend the free press against government interference, the chilling effect of political correctness does not prompt such unified action . . . Yet state-designated minority groups frequently target journalists who dissent from PC ideology. (Oriel, 2019)

Of course, neither battles between ‘right’ and ‘left’ (themselves contested categories⁴) nor differences of opinion on issues such as sexuality are new. Yet, there are factors that have doubtless contributed to the intensity of those media debates, as well as their culture-wars framing. Tom Bradshaw (2016) cites a growing emphasis on virality and algorithms: ‘Audience engagement (by which is meant high unique visitor numbers and the sharing of content) becomes the altar on which “good” journalism is potentially sacrificed’ (pp. 15–16).

A 2020 study cites the ‘rise of the far-right across many Western countries over recent years’, and the attendant scholarship on ‘the roles of media and new media technologies in the dissemination, circulation and reception of ideas once considered beyond the pale’ (Busbridge et al., 2020: 1). The emergence of the North American Breitbart News Network is one example of this dissemination (Davis, 2019). The kind of media rhetoric featured in The Australian op ed described above is another.

Almost every area of social life has been incorporated into culture-wars rhetoric, and this includes sport.⁵ In North America, Breitbart Sports has frequently portrayed Christian sportspeople as ‘victimized through the existence of a “pro-gay” and “pro-LGBT” agenda’ across sports organisations such as the NCAA, NBA and the media (Falcous et al., 2019: 600). This framing of Christians as victims of LGBTQI groups and interests has animated media coverage of the Folau controversy, especially that which has been published in News Corp mastheads.

There are several reasons why Folau became the subject of such intense media controversy, when he is not the only (current or former) sportsperson to express homophobic sentiments. These include race. Folau was born in Sydney of Tongan parentage and is one of a number of players of Pasifika heritage playing in Australian rugby (Lakisa et al., 2014). In an insightful article, Ruby Hamad argues that some media reportage on Folau’s views ‘transfer[s] all guilt onto people of colour so that white society retains its pure, clean and innocent self-image’ (Hamad, 2019). She compares this reportage with media commentary on the Anglo-Australian former tennis player Margaret Court, who opposed same-sex marriage from a Christian standpoint: Folau (according to journalists) ‘attacks gay people’ while Court merely ‘denounces marriage equality’ (cited in Hamad, 2019). The significance of race and religion in the Folau controversy have been explored elsewhere (see Hamad, 2019; Thomsen, 2019)⁶; constraints of space prevent us from doing so here.

Media controversies such as those described above do not amount to simply a ‘war of words’ (Davis, 2019: 241). In Australia, narratives about an intolerant, anti-democratic and left-wing censoriousness have had a bearing on public policy. For example, the outcome of the Bolt versus Eatock case, and the subsequent allegations from Bolt and other right-leaning media commentators about the supposed punitiveness of Section 18C led to a governmental inquiry into the ‘weakening’ of the racial discrimination statute (Bond et al., 2018: 5). Folau has been cited in media commentaries on the Australian Federal Government’s proposed Religious Discrimination Bill. That bill proposes a law that ‘companies with revenue of at least $50 million a year would have to prove the sacking of staff for expressing controversial religious views in a private capacity was necessary to “avoid unjustifiable financial hardship to the employer”’ (Ireland, 2019). This has been dubbed the ‘Folau clause’ in some media reportage (Ireland, 2019).

Methodology

The authors drew on a corpus of material about the controversy that was published in six Australian newspapers. These are The Age, The Australian, The Canberra Times, The Daily Telegraph, Herald Sun and The Sydney Morning Herald. The articles were located via a Factiva search, with the search dates between 10 April 2019 (the date of Folau’s Instagram post) and 31 December 2019, the legal proceedings between Folau and RA having been settled on 4 December 2019. The search term used was simply ‘Israel Folau’.

A total of 267 articles were selected for coding: 162 from News Corp mastheads and 105 from the mastheads of Nine Entertainment and The Canberra Times. The News Corp mastheads were The Australian (national), The Daily Telegraph (Sydney) and the Herald Sun (Melbourne). The Nine-related mastheads were The Sydney Morning Herald and The Age; The Canberra Times is published by Australian Community Media. These six newspapers, taken together, account for 67.8% of the Monday-to-Friday readership of state and territory capital city daily newspaper print readership across Australia.⁷ Their online readership is correspondingly dominant.

The mastheads encompass different ideological standpoints: for example, The Australian is right-leaning, while The Age and The Sydney Morning Herald are more centrist. The articles selected spanned several genres, including news stories op eds and feature articles. They were published in different sections of the masthead (e.g. page 6, page 20) and on different platforms (hard copy and online).

A number of articles were excluded from the corpus for reasons that include the following:

Were duplicates (e.g. articles republished same day or next day, sometimes with different titles),

Only mentioned Folau once,

Mentioned Folau but not the controversy surrounding his Instagram post. These included articles that focused specifically on Folau’s sporting career or that of his wife, Maria.⁸

The authors devised a coding schedule based on the three key themes that we had observed were the most contentious in media coverage of the Folau controversy. These were freedom of speech, freedom of religion and homosexuality. Our coding schedule contained the following analysis variables:

Title of Publication:

Title of article:

Name of author:

Date of publication:

Tone:

Unemotional;

Sensationalistic;

Other

Viewpoint privileged:

Balanced; gives equal or near-equal attention to different viewpoints on an issue, with privileging one particular viewpoint;

Subjective; one viewpoint privileged wholly or for the most part; other viewpoints ignored or otherwise dismissed

Other

Genre of article:

Opinion

News story;

Explainer;

Reader-generated content (e.g. letter)

Cartoon

Language used

Sensationalistic

Neutral

A combination of above

Other

Theme 1: Freedom of religion

Key focus of article

Mentioned sparingly

Article supportive of

Article antagonistic towards

Article neutral towards

Understood as being under threat

Not mentioned at all

Theme 2: Freedom of speech

Key focus of article

Mentioned sparingly

Article supportive of

Article antagonistic towards

Article neutral towards

Understood as being under threat

Not mentioned at all

Theme 3: Homosexuality

Key focus of article

Mentioned sparingly

Article supportive of

Article neutral towards

Not mentioned at all

The authors applied content analysis to the data. Content analysis is ‘a research technique that is based on measuring the amount of something . . . in a representative sampling of some mass mediated form of popular art’ (Arthur Asa Berger, cited in Macnamara, 2005: 3). While it has a quantitative basis, the content analysis deployed in this article is largely qualitative, prioritising the authors’ subjective impressions of the content being analysed over numbers and percentages. This approach seemed appropriate for the analysis at hand.

The authors also drew on framing analysis. Framing analysis explores the ‘aspects of perceived reality’ that are made ‘salient’ in a particular text (Pan and Kosicki, 1993: 56). The researchers were interested in the frames into which the Folau controversy was commonly situated by the Australian media. The following section sets out the number of articles published in the six newspapers and analyses them by volume, positive-neutral-negative orientation from the perspective of Israel Folau, genre, themes, language style and intensity of sentiment.

Findings

The following tables set out data on the six variables mentioned above.

The Daily Telegraph and The Australian published significantly more articles on the Folau case than did the other four. The number published by The Australian was nearly double that of the next largest, the Daily Telegraph, and more than double that of its rival New South Wales broadsheet, The Sydney Morning Herald. The News Corp newspapers’ coverage was significantly more positive for Folau than was the coverage in the Nine/Canberra Times articles. The largest difference between positive and negative stories was in The Australian: 47% positive and 5% negative. By contrast, in the Nine/Canberra Times articles, there were more negative stories than positive ones for Folau. The greatest proportion of negative stories was in the Canberra Times, where more than half were negative (Table 1).

Table 1.

Number of articles and orientation.

Orientation Re Folau	Publication
Orientation Re Folau	Sydney Morning Herald		The Age		The Canberra Times		Herald Sun		The Daily Telegraph		The Australian
	n	%	n	%	n	%	n	%	n	%	n	%
Positive	10	22.7	8	20.0	5	20.0	5	31.3	17	34.0	45	47
Neutral	15	34.1	15	42.9	7	28.0	5	31.3	28	56.0	46	48
Negative	19	43.2	13	37.1	13	52.0	6	37.4	5	10.0	5	5
Total	44	100	36	100	25	100	16	100	50	100	96	100

There was a stark contrast between the News Corp and the Nine/Canberra Times newspapers in the ratio of news to opinion articles. In the News Corp newspapers, the ratio of opinion to news was about 2:1 in favour of opinion. In both The Sydney Morning Herald and The Age, it was approaching 2:1 in favour of news; in The Canberra Times, it was more than 2:1 in favour of news. There was little by way of news analysis except in The Daily Telegraph and The Australian (Table 2).

Table 2.

Genre.

Genre	Publication
	Sydney Morning Herald		The Age		The Canberra Times		Herald Sun		The Daily Telegraph		The Australian
	n	%	n	%	n	%	n	%	n	%	n	%
News Report	27	61.4	21	58.3	17	68.0	5	31.3	12	24.0	27	28.1
News Analysis	2	4.5	2	5.6	0	0	0	0	14	28.0	10	10.4
Opinion	15	34.1	13	36.1	8	32.0	11	68.7	24	48.0	59	61.5
Total	44	100	36	100	25	100	16	100	50	100	96	100

The issues of free speech and religious freedom played a larger part in the coverage by The Daily Telegraph and The Australian than in the other newspapers. In The Australian, they were the second and fourth most dominant themes. For the most part, the dominant theme across the coverage concerned the legal dispute between Folau and RA over the termination of his contract. The Australian’s most dominant theme was general reaction, which came largely from politicians, religious figures and libertarian polemicists (Table 3).

Table 3.

Themes.

Themes	Publication
	Sydney Morning Herald	The Age	The Canberra Times	Herald Sun	The Daily Telegraph	The Australian
	n	n	n	n	n	n
Intolerance/hypocrisy	1	1	1	1	6	4
Contract	16	11	10	2	17	16
Folau’s future	1	0	0	0	4	2
Instagram posts and comments	5	7	4	4	4	10
Free speech	5	3	1	6	8	15
Religious references	2	1	1	0	0	0
Religious freedom	3	5	0	2	8	23
General reaction	11	8	8	1	3	26
Total	44	36	25	16	50	96

Across all eight themes analysed, the Nine/Canberra Times group articles were more negative than positive for Folau by roughly a factor of 2 to 1. The Herald Sun’s were marginally more positive for Folau and of the other two News Corp papers, The Daily Telegraph’s were positive for Folau by a little over 4 to 1 and The Australian’s by a shade over 9 to 1.

Articles that examined intolerance or hypocrisy contained accusations aimed at critics of Folau, or at Folau or his culture. These were more numerous in the News Corp newspapers, where they were aimed at critics of Folau. Where they appeared in the Nine/Canberra Times group, they were aimed at Folau.

Articles on the legal dispute over the termination of Folau’s contract by RA were for the most part straightforward news reports of those negotiations. However, some were critical of RA’s handling of the case, these being positive for Folau; some claimed that RA did the right thing. The latter articles were negative for Folau.

Articles on Folau’s Instagram posts reported the content of the posts and carried comments related directly to what was in them. The first controversial post was one concerning social groups that needed to repent for their apparent transgressions. In the second, posted in November 2019, he wrote that the bushfires that ravaged much of eastern Australia in the summer of 2019–2020 were a sign of God’s wrath.

Articles on free speech concerned arguments about whether Folau’s posts represented an abuse of free speech (the negative articles) or whether critics of Folau were seeking to suppress his freedom of speech (positive). The small number of articles on religious references focused on Biblical passages and whether those passages had anything to say about homosexuality. Articles on religious freedom were concerned with whether, in terminating Folau’s contract, RA was infringing his right to freedom of religious belief as well as religious expression. Articles positive for Folau argued that RA was infringing these rights; articles negative for Folau argued that RA was within its rights to act as it did on the grounds that Folau had breached the terms of his employment and religious rights did not come into it.

General reaction articles carried the views of a wide range of people: politicians, commentators, sports people and lobbyists. Where the reaction was supportive of Folau, the article was rated positive; where it was not supportive, it was rated negative.

On the issues of free speech and freedom of religion, The Australian was a clear outlier, devoting 15 articles to free speech and 23 to religious freedom, in each case a large proportion being positive for Folau. The Daily Telegraph also published articles far more positive than negative or neutral articles on these themes. The Nine/Canberra Times newspapers paid much less attention to these issues and where they did, they were relatively even-handed.

Judging tone can be highly subjective, especially when reading words on a page or screen. The authors judged tone based on the language used, as well as on considerations such as the argument being advanced by the author, and whether or not the author was attempting humour or sarcasm (Table 4).

Table 4.

Language tone in opinion articles by newspaper.

Tone	Publication
	Sydney Morning Herald	The Age	The Canberra Times	Herald Sun	The Daily Telegraph	The Australian
Angry	–	–	–	4	2	1
Impassioned	1	3	–	3	9	19
Polemical	6	4	3	4	11	37
Sarcastic/satirical	1	–	–	–	1	1
Condemnatory	1	1	2	–	–	–
Witty	1	2	1	–	–	1
Subdued	5	3	2	–	–	–
Upbeat	–	–	–	–	1	–
Total	15	13	8	11	24	59

The tone of the opinion articles was more impassioned in the News Corp papers than in the Nine/Canberra Times group. The intensity of sentiment, as measured by tone and volume, was much higher in The Daily Telegraph and The Australian than in the other newspapers.

To illustrate this, values of 1 to 8 have been given to each type of tone, 1 being ‘upbeat’ and 8 being ‘angry’. Multiplying this value by the number of articles for each tone and summing the products for each newspaper reveals the following ‘intensity’ comparisons:

The sentiment in The Australian, as measured by these metrics, was two-and-a-half times more intense than its nearest rival, The Daily Telegraph, which in turn was nearly twice as intense as its nearest rival, the Herald Sun. The sentiment in these News Corp newspapers was more intense than in any of the Nine/Canberra Times group newspapers.

Of the articles published by News Corp, 41.4% were positive for Folau; the corresponding figure for the Nine/Canberra Times group was 21.9%. Conversely, of the 105 articles published by Nine/Canberra Times, 42.9% were negative for Folau while the corresponding figure for the News Corp newspapers was 9.9%. The polarisation was also evident in the intensity of the debate in each of the groups, as shown in Table 5.

Table 5.

‘Intensity’ comparisons.

Publication	Intensity score
The Australian	365
Daily Telegraph	145
Herald-Sun	77
The Sydney Morning Herald	65
The Age	54
The Canberra Times	33

However, only 15% of the 267 articles analysed had as their primary focus free speech as a stand-alone concept. The classical argument for free speech in the Miltonian and Millian traditions – that truth would emerge from the contest of ideas – hardly received a mention. One article in The Age did touch on this. The writer argued that Folau was speaking the truth according to his outlook and beliefs (Farrelly, 2019). Another, in The Australian, asked why Folau was being driven out of rugby for speaking his truth, even though some people found it offensive (Jones, 2019). By contrast, the Voltarian concept of free speech, with its emphasis on the right to exercise this freedom, was a dominant factor in the Folau debate. Its focus was on a contest of rights: Folau’s civil and political rights and his employer’s right to protect its interests, in part, by inserting a clause in Folau’s contract concerning his use of social media. The utilitarian concept of consequences played a much lesser role in the debate.

The argument from Voltaire developed along two lines, one in respect of religious freedom and the other in respect of a broader libertarianism. Of the two, religious freedom was the more commonly used line of argument. According to this argument’s proponents, Folau should be free to express his views on homosexuals as part of his religious beliefs, however offensive or objectionable these views might be to many people. According to this argument, he was entitled to quote the Bible in support of his beliefs, and attempts to silence him represented a threat to the religious freedom and the freedom of expression of all Australians.

The line of argument grounded in libertarianism appeared most often in The Australian and was frequently expressed in ad hominem terms contemptuous of opposing viewpoints. The view that Folau was wrong was referred to variously as a ‘pile-on’ by ‘sneering secularists’, ‘political correctness’, an offence against ‘the pieties of the arrogant elites’ and the work of ‘woke hypocrites’. It was also common to see libertarian arguments expressed in terms of left-versus-right political ideology: a ‘choke tackle’ executed by ‘left-wing pundits’, part of a ‘liberal left’ agenda or totalitarianism similar to that of ‘Communist China’.

However, in both The Daily Telegraph and Herald Sun, there were arguments against Folau based on John Stuart Mill’s harm principle. According to this principle, ‘The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’ (cited in Bradshaw, 2016: 20). The above newspapers were the only ones in which the principle was specifically alluded to. The Canberra Times referred in several articles to Folau’s position as being untenable and that the exercising of his right to free speech was now having consequences. These articles did not argue for harm as a constraint on free speech per se.

The final factor to play into the free-speech argument was the dispute between Folau and RA over his contract. The quantitative data show in that 27% of all the articles analysed – 72 out of 267 – the contractual dispute was the primary focus. Perhaps unsurprisingly, because it had been the Instagram post that led to this dispute, a central free-speech question was whether RA, as Folau’s employer, was entitled to take action against him, since the proposition that social media activity is an entirely private right is controversial.

Because this argument was played out in legal proceedings, nearly two-thirds of the articles where the primary focus was on the contract issue were neutral, since it is a legal and ethical requirement that reports of legal proceedings be fair and accurate. Even so, just over one-third of the articles contained arguments that were clearly for or against Folau, being opinion articles rather than news reports. These argumentative articles about the contract issue were clearly against Folau in the Nine/Canberra Times group (13 against, 5 for). In the News Corp newspapers, the count was 6 for and 4 against. The Herald-Sun did not take sides on this aspect of the case.

The Nine/Canberra Times articles included a ridiculing of the settlement terms, in which RA stated that Folau had not intended harm or offence. The Australian carried an article saying that the outcome of the legal proceedings showed that for highly paid sports figures, the terms of their contracts could so closely constrain them that ‘the notion of freedom of speech is essentially inapplicable to them’ (Editorial Opinion, 2019).

A Daily Telegraph article said Folau was being ‘crucified’ (Pandaram, 2019), but another stated that Folau held ‘extreme religious views’ and had posted ‘homophobic material’ (Cannon, 2019). A third argued that Folau seemed ‘confused’ since RA had warned him the previous year about his social media posts, noting that Qantas (a major sponsor of RA) had threatened to withdraw sponsorship if Folau offended again and was not sacked (Kent, 2019). Yet another article characterised the settlement as ‘a victory for free speech and democracy’, although the basis for this assertion was opaque (Richie, 2019).

Thus, as our findings reveal, the debate as it played out in the six newspapers under examination was extremely partisan. The debate failed to do justice to the underpinnings of free speech as a civil and political right. Except for the limited efforts of The Daily Telegraph and Herald Sun in referring indirectly to the harm principle, the articles failed to come to grips at all with the question of boundaries around free speech: what those boundaries might be and why they exist.

The Voltarian libertarian case for free speech was invoked without apparent regard for the philosophy behind it. Proponents of this case tended to rely on name-calling and ideological one-liners. These authors showed no awareness that in taking this approach, they were seeking to shut out opposing view by using ridicule and contempt in place of reasoned discussion.

Overall, free speech as a stand-alone concept played a relatively small part in the Folau case, though its media coverage was largely framed in terms of whether Folau was or was not censored; whether or not this apparent ‘censorship’ was ideologically motivated; and whether or not his speech was worth defending, and why. These are important topics for debate, and they are topics that the authors had anticipated; indeed, they were topics that the authors had sought out via their coding frame.

During the coding process, however, limitations associated with this emphasis on free speech became apparent. That is, debating whether or not Folau was unfairly silenced does not in itself say anything about what might be problematic about that speech. Some commentators (whether writing for or against Folau) suggested that Folau’s post was absurd. Some who argued that Folau was not unfairly silenced suggested that his Instagram post could cause harm to young LGBTQI people. As we will acknowledge, however, such claims are contestable.

And so, after reviewing our findings, we posed the following question: How can controversies as the one surrounding Folau’s Instagram post be reframed and strengthened via an investigation of the ethics of the speech being reported on? This question will energise the remainder of the article.

Ethics

The term ‘ethics’ encompasses those principles which guide our conceptions of ‘right’ and ‘wrong’, of how to treat others in a way that is least likely to perpetuate harm. As Ronald Arnett (1990) points out, both ethics and freedom of speech ‘emerged from the same classical foundation of “practical philosophy” detailed by Aristotle’ (p. 209). A commitment to both ethics and freedom of speech is necessary to enhancing the volume, inclusiveness and the quality of public communication. Arnett (1990) writes, ‘Freedom of speech enables ideas other than our own to gain a hearing. Free speech permits us to question’ (p. 215). Equally, a commitment to ethics encourages the audience to question, namely, the rightness or wrongness of the speech expressed, and the impact of that speech on the audience.

Yet, an ethical understanding of free speech requires more than making such an acknowledgement, or even assessing whether certain views are ‘right’ or ‘wrong’. James E. Porter (2020) argues that

your purpose as a rhetor does not end with the audience but rather with the polis. Your communications are not produced only to persuade, instruct, or delight. Your purpose in interacting with the audience serves a larger purpose . . . to serve the common welfare, to promote justice and equity, to make society better, and to maintain positive relationships with others. (p. xvi)

Porter (2020) refers specifically to the ‘ethics of rhetoric’, but the above passage could also be applied to the principle of free speech (p. xvi). This principle should by definition encourage the expression of unpopular and controversial views, but it should also assess how exactly those views impact on audiences.

In the next section, we argue that controversial modes of speech such as Folau’s can be more fairly assessed, and a free speech/censorship stand-off moved away from, by reframing controversies such as the one surrounding Folau through the lens of media ethics. This article demonstrates that while freedom of speech per se is worth defending, this does not mean that all speech is equal. Nor does it mean that speech is neutral. By integrating ethical considerations into an analysis of a free-speech controversy, we go some way towards realising Arnett’s (1990) vision of ‘free speech and communication ethics working hand in hand as freedom and responsibility’ (p. 216).

We also lay the groundwork for the creation of new media frames, frames that ‘will allow us to stand for the value and dignity of human life, to react with outrage when lives are degraded or eviscerated without regard for their value as lives’ (Butler, 2009: 77).⁹ Judith Butler (2009) argues, ‘For alternative frames to exist and permit another kind of content would perhaps communicate a suffering that might lead to an alteration of our political assessment of the current wars’ (p. 77). Reframing free-speech controversies could thus enable fresh perspectives on free speech, perspectives that are not so squarely focused on whether speech is stifled or not; perspectives that take into account the human dimensions of that speech.

Reframing free-speech controversies through an ethical lens

For some journalists who have disagreed with Folau’s views, such views are laughable; for example, Caroline Marcus jokes that the vision of hell invoked by Folau ‘[s]ounds like quite the party’ (Marcus, 2019). Other critics take a different view. For example, Jonathon Moran (2019) says of the post, ‘If it offended me, someone who is now being very comfortable being gay, I can only imagine how much it might have cut a young guy or girl who looked up to him that is struggling with their sexuality’. Moran cites the high rates of suicide attempts by LGBTQI young people aged between 16 and 27 years. Susie O’Brien (2019) opens a Herald Sun op ed thus: ‘Israel Folau’s right to free speech or religious freedom does not trump the right of gay people to be safe from damaging, hateful abuse’. O’Brien cites the openly gay former rugby player Ian Roberts as saying in a television interview, ‘There are literally (gay) kids in the suburbs killing themselves’ (cited in O’Brien, 2019).

The impassioned rhetoric deployed above is itself deserving of critical assessment. For example, Moran reports feeling ‘offended’. Yet, as Anne Graefer (2019) demonstrates, offence is deeply subjective; what counts as offensive to one reader may not be offensive to another. ‘Offence’ is not coterminous with ‘harm’, the latter of which can connote injury and damage that is psychological and/or physical in nature. Section 18C of the Racial Discrimination Act, referred to earlier, sets out four fault standards upon which action may be taken against an alleged offender: insult, offence, intimidation and humiliation (McNamara, 2016). A civil action may proceed on the basis that the conduct complained of may have transgressed any one of those standards.

The implied correlation between Folau’s post and suicide is even more contentious. Media scholar Rob Cover (2016) has argued that attributing suicide among LGBTQI young people largely or exclusively to homophobia overlooks ‘complex relationalities which might include the ways non-heterosexual identities are produced as non-normative and marginal in the context of varying degrees of social belonging’ (p. 101, emphasis in original). This homophobia–suicide correlation also overlooks how LGBTQI young people can and do remain resilient in the face of homophobia (Cover, 2013).

We argue that integrating ethics within an analysis of free speech is important because it shows that Folau’s Instagram post is not simply an example of offensive speech; this post suggests that homosexuals are deserving of, and destined for, punishment simply by falling outside an unstated, heterosexual norm. That suggestion is based on an assumption that homosexuals are not equal citizens, and that (heterosexual) speakers have the right to articulate this, and not be penalised or criticised for doing so. Such a suggestion is difficult not to classify as homophobic. As Conor McCormick (2014) argues, homophobia ‘not only oppresses the interests of homosexual individuals, but . . . erodes the value of their identity; subjugates their culture; represses their pride . . .’ (p. 42). Homosexuals are not understood as equal and valuable contributors to the societies in which they live; indeed, their lives ‘do not qualify as lives’ (Butler, 2009: 1). Such outcomes are not conducive to ‘democracy’, which has historically foregrounded the importance of equality between citizens (Kaplan, 1997: xi).

Equally, an ethics of free speech acknowledges not just that Folau is entitled to his views, but that he is responsible for selecting and expressing them. O’Brien asks rhetorically, ‘There are many passages from the Bible he could have chosen, so why pick one that demonises gay people?’ (O’Brien, 2019). It appears difficult to accept that Folau would not have been unaware of how his post would be received. In April 2018, in another Instagram post, Folau responded to the question of what was ‘God’s plan for homosexuals’ with the following message, written in capitals: ‘HELL . . . UNLESS THEY REPENT OF THEIR SINS AND TURN TO GOD’ (cited in Knox, 2019: 20). This response generated a minor controversy, and that controversy (we can speculate) would likely have alerted Folau to the contentiousness of his views.

Equally, an ethics of free speech would be cognisant to the publicness of Folau’s 2019 post. This ‘publicness’ stems both from Folau’s highly publicised (in Australia) sporting career and his choice to post the image on Instagram. The free and public exchange of ideas certainly appears to be encouraged by social media platforms:

Social media platforms have changed this media landscape forever, as they have altered our perceptions of the limits of communication and reception of information. It is no longer the case that communication is constrained by boundaries, such as location, time, space or culture. (Coe, 2015: 21)

This lack of constraint can entail the broader distribution of material that is disrespectful and denigrative of individuals and groups. Coe (2015) cites cyberbullying and revenge porn as examples of such material (p. 27). Another example would be Folau’s Instagram post. This post may not have been designed expressly to harm, as is the intent of cyberbullying and revenge porn. This might well be a sincere, albeit awkwardly worded, expression of religious faith.

Yet, as we have argued, that Instagram post is also a speech act that can be witnessed by a wide audience, including LGBTQI individuals, and a speech act that portrays those individuals as being inherently unequal or at least inferior to heterosexuals. Whether an employee should be punished by sacking for expressing these kinds of views has been the topic of considerable debate. As Elle Nikou Madalin (2017–2018) points out, in an incisive analysis of the controversy, ‘Given the monopoly that governing bodies generally enjoy over athletes, it is difficult to justify restricting freedom of expression on the basis of some consensual arrangement where an athlete has “traded away” his or her rights’ (p. 70). RA’s response can certainly be regarded as censorious. Nonetheless, it can also be read as acknowledging the gravity of Folau’s words, albeit in a heavy-handed way. As Muller (2014) puts it, ‘free speech gives way in some circumstances to other interests, and therefore is not absolute’ (p. 50).

Conclusion

This article has examined the fraught issue of freedom of speech as this has played out in the media controversy surrounding Israel Folau’s April 2019 Instagram post. Drawing on content analysis and framing analysis, we have demonstrated that the controversy tends to have been framed in terms of whether or not Folau’s speech and speech in general was under attack. This is understandable given the issues at stake and the topicality of ‘freedom of speech’ (and its apparent endangerment) in the Australian media. Nevertheless, that framing says little about how that speech frames the groups being spoken about (in this case, LGBTQI people); how this group might be impacted negatively by the speech (even when this impact may not constitute ‘harm’ per se); and thus whether that speech is in any way conducive with democracy.

In the final section, we proposed that debates surrounding freedom of speech such as the one involving Folau could be enriched by an engagement with ethical principles. Ethics were, we found, glaringly absent from much of the media coverage surrounding the Folau controversy. The ethical perspective on free speech that we propose is premised on a commitment to the free exchange of views, while acknowledging that all views – especially those of a denigrative nature – will and must face consequences. This view acknowledges that Folau’s speech was not simply a private expression of personal faith; it was published on social media, and there is reason to believe that he must have at least anticipated the critical response to that post (if not his actual job loss).

By analysing free-speech controversies through an ethical lens, we can acknowledge that speech is not always inherently good for democracy, nor inherently worth defending. The frames deployed in the newspaper reportage of the Folau case, that is, concerning whether or not Folau’s speech (and speech in general) is being threatened by an ideologically motivated censoriousness, are suited to an era of clickbait journalism and political polarisation. Attacks against an intolerant Left have been a recurring feature of right-leaning culture-wars rhetoric. Ultimately, these frames cannot enhance, indeed, they can only restrict, public understanding of speech and its consequences.

Footnotes

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD

Jay Daniel Thompson

Notes

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