“Death, death to the IDF [Israel Defence Forces]” and “Death, death to the IOF [Israeli Occupying Force]”. Chants that some in the Palestinian support movement in Melbourne used last weekend.

Not a novel chant — it has been used in the UK recently — but should it be considered problematic when the Israeli Government, through the IDF, is committing genocide in Gaza? Is it so dangerous it falls outside the right to freedom of speech?

To be clear, this writer is not advocating for the use of the chant and notes that there is a risk police will investigate those who use it.

The chant has been used recently at the Glastonbury Festival by Bob Vylan, a Punk duo, and has been condemned by political leaders in that country. Police in the UK are investigating the group.

A pertinent aside is worth setting out because it goes to how we, as a society, judge political speech. While it is a legitimate exercise of freedom of speech to condemn the IDF/IOF chants, we can ask this question. Let’s say a pro-Ukraine protest was held in Melbourne and some chanted, “Death to the Russian Army”? Would those who find the IDF/IOF chant dangerous condemn the Ukrainians? Answer, no.

The law around speech is often highly contested, as it should be. So are the chants within the bounds of freedom of speech in a jurisprudential or broader philosophical sense as opposed to a legal framework?

The problem with using the latter in Australia as a philosophical yardstick is that freedom of speech is not as broad a right as it should be in a liberal democracy because, outside the implied freedom of political communication devised by the High Court over the past three decades, there is no constitutional protection for this fundamental right at the national level. There is some protection in Victoria, Queensland and the ACT which have human rights laws. This lack of national protection for freedom of speech has allowed governments to pass draconian laws against protesters – New South Wales being one of the worst offenders.

A useful place to go in discussing whether these chants fall within freedom of speech in that broader sense is to William O. Douglas, the great progressive US Supreme Court judge. Once upon a time, when the US Supreme Court was not a corrupt body with a majority of judges who are simply enablers of the wholly deranged President Trump, Douglas tackled freedom of speech many times. Douglas left the Court in 1975, having been on the bench since 1939 – a record.

Douglas’ approach to freedom of speech, which has been regularly adopted by liberals and libertarians, was set out in a 1949 judgment. He wrote that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.” And while it is not absolute, wrote Douglas, freedom of speech, “is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest".

As with most slogans, chants or rallying cries, the backdrop is important. There are a number of ways in which one can approach the issue of the IDF/IOF chant.

The IDF, and by the way it is an occupying force so calling it the IOF should not concern any reasonable person, is carrying out the Israeli Government, led by the alleged and wanted war criminal Benjamin Netanyahu, policy of genocide in Gaza.

Consider these numbers. After 7 October 2023 when Hamas killed 1200 people, including 800 Israel citizens, and took hostages, the number of Palestinians killed by Israel in Gaza is now more than 57,000. There are more than 125,000 wounded. More than 14,500 children have been killed and there is this chilling fact – the highest number of amputee children in the world are in Gaza.

By the way, the total number of violent deaths may be higher. A paper published on medRxiv last month by Michael Spagat and colleagues puts the figure at 75,000.

There is nothing ethical about the IDF despite it, and its supporters, obscene claim that it is the most ethical army in the world.

In March this year, the NGO, Human Rights Watch revealed; “Israeli forces repeatedly demonstrated deadly cruelty against Palestinian patients in hospitals that they seize.” Bill Van Esveld, associate children’s rights director at Human Rights Watch revealed the gross inhumanity of the IDF towards vulnerable patients: “The Israeli military’s denial of water and electricity left sick and wounded people to die, while soldiers mistreated and forcibly displaced patients and health workers, and damaged and destroyed hospitals.”

So in circumstances such as those in Gaza where the IDF has inflicted cruelty on masse over nearly two years, chanting “Death to IDF, Death to the IOF” is placed in context.

To return then to Douglas. His defining of the boundaries of freedom of speech is particularly useful in the context of whether chants such as “Death to the IDF” are permissible in a liberal democracy. While the chants are violent in the use of the word “death” are they such that they are “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest”, to use Douglas’ test?

There is a respectable argument for saying no. As some commentators have noted, the slogan “Death to fascism” does not mean those chanting it will, or are urging others, to kill everyone who is a fascist. The chants are not directed at an individual, but at a military entity.

As one of Douglas’ colleagues, William Brennan, who served on the Supreme Court from 1956 to 1990, put it, the test for government interference with speech is if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action".

On the Douglas/Brennan test or framework one would have thought that the evidence of such a state of affairs in Melbourne today falls short.

This is a chant, that’s all. Meanwhile, the IDF killing machine in Gaza continues.

The views expressed in this article may or may not reflect those of Pearls and Irritations.