Originally apeared on the Spectator Australia:

Blanket bans on secret recordings are an affront to freedom. Fortunately, animal rights activists are doing Australians a favour by challenging these restrictions.

Don’t be fooled by the reporting, the case of Farm Transparency International Ltd & Anor v. State of New South Wales is about more than merely ‘ag-gag’ laws that prevent the filming of abuses of animals – though this case would still be a worthy court challenge even if it was.

No, the law being tested is the Surveillance Devices Act 2007 (NSW). This law is a blanket law that prohibits filming or recording on private property without the owner’s knowledge or consent. It also prohibits the publishing of private conversations. Significantly, most other states and territories have exemptions carved out in similar laws on public interest grounds, whereas New South Wales does not.

Advocates for this law (the government) say that it protects privacy by preventing citizens from going around recording each other. That it does, but it also provides ample provisions to allow law enforcement agencies to do what private citizens can’t.

Farmers believing the hype that the success of this court case will grant a free pass to farm invaders, remain in favour of the surveillance law. However, there are all manner of laws already on the books to prevent people trespassing that farm invaders could be charged with – none of which are being challenged in this case.

The plaintiff, Farm Transparency International Ltd, is bringing this claim because it prevents the filming of (perceived) animal rights abuses taken while trespassing on private property. People’s feelings about farm invaders are not the point. As the plaintiff has explained, whether they are ‘admirable activists, or vulgar vigilantes, or something in between, is irrelevant’. The principle is far broader than the actions of these particular animal rights activists.

The issue, in this case, is whether the New South Wales law that enforces a blanket ban on recording on private property puts a too high burden on freedom of speech (actually, it is the Australian Constitution, so the correct terminology is ‘freedom of political communication’).

If the challenge is successful, the overturning of this law could protect others when filming perceived injustices and blowing the whistle on them.

Animal rights activists have done a lot for freedom of political communication constitutional jurisprudence in this country

The case that led to the ‘discovery’ of this implied freedom involved putting dead ducks on the steps of parliament to protest duck hunting. In a landmark decision, the High Court deemed the action to be protected by the Constitution, saying that there is an implied right to freedom of political communication.

With any luck, these litigious animal rights activists will have the same effect as Levy, and expand the principle of freedom of political communication to the right to film as it is invaluable to one’s ability to draw attention to those things that are against one’s conscience.

This is significant in the era of Covid where there have been attempts to prevent the filming of protests and arrests of citizen journalists and documentary makers who have been reporting on the government’s response to Covid and the protests against them. If successful, this current court case could green-light a challenge to the various ways citizen journalists have been silenced when trying to report, particularly in Victoria, over the past (almost) two years.

This law would also mean that an equivalent of Project Veritas could never happen in the state of New South Wales. Controversial though releasing footage from hidden cameras and leaked recordings may be, there is no denying that it has exposed important information. However, if this challenge is successful, it may pave the way for undercover whistle-blowers to lift the lid on the happenings in organisations in Australia in much the same way as what Project Veritas does in the US.

There are many flaws to our implied freedom of political communication. Ideally, we would have protection for freedom of speech as robust as the First Amendment in the USA. But it is all we have, so let’s hope the High Court of Australia creates a precedent to permit these animal rights activists to film, because this is something all will benefit from. People should be able to film all manner of things that go against their conscience and alert the public to their occurrence.

Despite the focus of the media on this challenge being about ‘ag-gag’ laws, this court challenge has a far more significant principle at play – freedom of conscience.

The idea of preference falsification was coined by Timur Kuran in his book Private Truths, Public Lies which explores how people show themselves to be in with whatever is vogue in public but behave very differently in private.

Timur Kuran is a Turkish born scholar who witnessed how quickly public displays of secularism became the fashion during the time of Atatürk, and how quickly this changed into public displays of religiosity as when a new political power came in. Presumably, there were just as many religious people and non-religious people; it is just which expression is fashionable at any given time that changed.

The knowledge of preference falsification was a driving force behind the secret ballot (which Australia was a world leader in adopting) which allowed people to act out their preferences in private without anyone else knowing.

The divergence between high culture and mass culture (in whatever form that takes in any given era) is another way that preference falsification is shown.

In a bygone era, people would profess that they read Shakespeare and attend Vivaldi operas - and they probably did do both of those things in public. But the best sellers in each bookshop don’t lie, and instead of the Sonnets flying off the shelves it was cosy crimes like those famously written by Agatha Christie. Today her work is considered to be the golden age of literature, not lowbrow trash!

Today, it is easy to have guilty pleasures. No one needs to listen to your taste in music if it is delivered straight to your ears through bluetooth wireless earphones, and no one needs to know what you watch on your personal devices. More revolutionary is that you can find people who share your taste more easily since people aren't restricted to geography or culture, and instead can find internet forums dedicated to whatever niche interest one has.

There is still high culture, but it is very different to times gone by. It is the type of art where you have to “get it” like a banana duct taped to a wall or Banky’s self-destroying art. It is ironic, not beautiful or a demonstration of mastery of a medium. It is pure in-joke for those that have the right money and connections to enjoy the scene.

But in private people behave very differently, according to a piece in Mathilde Magazine by Varia Karipoff. According to a gallery owner, when people buy art to hang in their homes, it is not the ironic type - it is old school landscapes, still life painting, and generally art that is nice to look at.

Beware of preference falsification when you see ‘trends’ emerging as it might be a tiny group of people that are potentially just paying lip service to an ideal in public because it gives them access to those with power or clout.

It could be that a quiet majority will pay good money for something completely different.

In Free Speech And Why It Matters by Andrew Doyle, he tells the story of Sandro Botticelli who was spellbound by the Dominican Friar Girolamo Savonarola, along with the rest of Florence.

In his fervour, so the story goes, even cast some of his own paintings on the pyre during the famous ‘bonfire of the vanities’ in which followers of the monk “torched thousands of objects associated with sin and moral degeneracy: cosmetics, dresses, mirrors, perfumes, books and even musical instruments.”

Doyle concludes with:

“It is difficult to conceive a more evocative image of artistic self-censorship. If the story is true, we may have lost significant works of art because their creator had allowed a doom-mongering monk to throttle his muse.”

Artists are far from immune to the fads and ideologies of the time. In fact, they may be more susceptible than most, after all, part of an artist's allure is to be fashionable. Not least because, although no artist would admit to it, giving the public what they want is how to ensure they get paid for their work (something that artists struggle with at the best of times) as anything too controversial will immediately be subject to the gatekeepers ire or be a turnoff for an ideologically possessed crowd.

That is not to say that following ideological fads are cynical. Many truly believe them, otherwise, why would they do the modern equivalent of throwing their work on the pyre and self-censor based on a given ideology, and not just when it pays but also when it doesn’t pay.

A modern example would be George Clooney turning down $35 million for a day's work after consulting with his wife about the apparent ethics of the company. The telling of this story has earned social clout, but he could have been $35 million richer but for his ideological view.

The problem with self-censorship depending on the ideological fashion of the times is that work produced to accord with it will never be timeless. Fads come and go, and the art that capitulated to them may find themselves on the wrong side of history in a time in the future.

So often it is the artists that struggled in their lifetimes that end up rediscovered because they had a unique vision, totally unphased by the fads, that ends up to speak to people, no matter what ideology is in vogue.