Why the Australian DJs should never have made that call to Kate's nurse

Ever since a prank by a pair of Australian DJs revealed Kate Middleton’s pregnancy, and subsequently led to the death of nurse Jacintha Saldanha, there has been widespread condemnation of both the prank and its perpetrators. The hospital, the Royal family, and even the pranksters themselves, Mel Greig and Michael Christian, have assigned the DJs their share of the blame.

Several comments, like this one from CNN contributor Ross Stevenson, cite Australian broadcast regulations which forbid broadcasting the words of an identifiable person without their prior knowledge and consent. Says Stevenson, “Jacintha Saldanha was not aware in advance that her words might be broadcast.” Hence the radio hosts violated the law.

On the other hand, others have argued that blaming the pranksters for nurse Saldanha’s death is simply the wrong way to parse the events.

According to Taylor Marsh, writing for themoderatevoice.com, the DJs “taking blame is not only outrageous, but borderline irresponsible.” Marsh refuses to accept that the radio hosts ought to be blamed for the nurse’s death. The death, believed to be a suicide, ought to be considered an extreme reaction which the pranksters could neither control nor reasonably be expected to predict, according to Marsh.

The CBC’s Dr. Brian Goldman offers a similar argument, that “it would be wrong to rush to judgment for a whole lot of good reasons.” Dr. Goldman’s reasons include the fact that we are not yet certain it was a suicide and that the call took place at 5:30 AM, “a time of day when the overnight staff may be sleep deprived and somewhat inattentive.” Goldman argues that the hospital needs to look at “its own operations and operating culture that contributed to this terrible tragedy.”

Still another line of thinking is seen on Dailykos.com. Here, a writer (who does only goes by 8days2amish) argues that committing suicide over a prank is absurd and, apparently, also selfish.

All of this makes for a lively discussion. Unfortunately, it is also completely misguided. The proper subject here is free expression. Not hospital workplace culture, not the morality of suicide, not Australian broadcast regulations, but free expression.

Freedom of expression is one of our most cherished democratic values. When considering a case like this, we do well to ask what are the implications for our basic commitment to free expression. This is not a test of decency. Rather, it is a test of whether or not we risk trampling one of our most fundamental freedoms in the process of decrying a speech act.

Allow me to fill in a little background.

In his seminal essay On Liberty, J.S. Mill argues that free speech should be generally unrestricted except in the case where a harm is involved. This is what we call Mill’s Harm Principle.

“An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.”

So, in other words, context matters. Expressing the opinion that corn-dealers are responsible for starving the poor may be democratically productive within the context of a town hall, but in another context may amount to inciting murder.

Oliver Wendell Holmes Jr. famously makes a related argument about shouting fire in a crowded theatre. Where speech is visibly both false and dangerous, the speaker must take responsibility for its consequences and is properly subject to sanctions under the law. Since then (1919), the law has changed. But it is the spirit of this quote which I hope to invoke.

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