Overcoming the Threat to Freedom of Speech

The discussion about legitimate restrictions on speech, and in particular the Coalition’s commitment to amend section 18C of the Racial Discrimination Act, has been a contentious, but important one.

We all want to live in a free society. We all want people to express their opinions and debate ideas and policies. We want people to live free of racism and the threat of violence in all forms.

However, there are some people who are not persuaded by the classical case for free speech as an argument to do away with section 18C of the Act. I do not want to convey any impression that I am somehow assigning a different motive to those who support racial discrimination laws. We have different views. I believe we all are headed in the same direction, but we have different paths.

At a personal level, I, like all liberals, retain a genuine and heartfelt concern with limits on speech.

The Andrew Bolt case in 2011 profoundly shocked many liberals. By liberals I mean those philosophically committed to the ideal of freedom of thought and speech, in almost absolute terms, with as few restrictions as possible.

Thomas Jefferson’s Memorial reads:

I have sworn upon the altar of god every form of tyranny over the mind of man.

I have always been a little moved by that statement. It captures the liberal view that there is no more sacred, no more critical right in our free civil society than what we call freedom of speech.

It is so simply and popularly outlined in the United States’ 1st Amendment:

Congress shall make no law … abridging the freedom of speech

There is a reason it holds such a special position in the pantheon of rights. Initially came our freedom to own property, then of religion and third freedom of speech. It was only following this that we obtained elections and the ballot—after people were given the voice to demand them. It was freedom of speech that drove the liberal revolution from which our societies are drawn. It empowered the development of institutions that we take for granted. I do not pretend this was without flaws or that it applied equally to all initially. But amongst those to whom it first applied some spoke out, so that these freedoms do now apply to all.

Martin Luther King crying for the ballot; those who opposed Robert Menzies’ attempts to ban the Communist party; those who condemned Pauline Hanson—critical battles like this were won by brave people challenging opinion, authority and sometimes even legal limits on speech.

The freedom to speak one’s mind, to challenge authority and the prevailing wisdom was the critical tool to bring about change in institutions, values and even what constitutes acceptable debate in our society. This is the perspective from where liberals start.

Free speech is on a very high pedestal, and we are sceptical of restrictions upon it. Indeed, if I briefly move to a more partisan analysis, I cannot think of another issue that so unites the members of the Liberal and National parties, both parliamentary and general membership, as this visceral commitment to free speech and hostility to new limits on it.

The Bolt case brought it home to many that the right we took for granted was under a very real threat. Within days of the judgement, the Institute of Public Affairs had thousands of donors to a campaign to repeal these laws, including a full page advertisement in The Australian, to which I was a signatory.

It is necessary to ask, why the Bolt case was such a shock, and why, by extension, is section 18C such a threat?

Much has been written about this before, so I will not simply cover old ground. But a few points are particularly helpful in explaining the liberal perspective.

According to the advice posted by the Australian Human Rights Commission, “The victim’s perspective is the measure of whether an act is likely to offend, insult, humiliate or intimidate.” I do not believe I have a right to protection from being offended or insulted. This is an extraordinarily low and subjective standard to use as a weapon against the expression of opinion.

As it is written currently, the Act is too wide. It does not differentiate between expressing opinions and intimidating or threatening individuals or groups. In the Bolt case, the fact that someone was offended was then used to seek legal redress, including an order that the comments not be published again. This is frightful to liberals.

Only a fortnight ago we had a report of the action faced by Professor Don Aitkin, who after making a blog comment regarding the colour of the skin of someone performing a welcome to country, was threatened with being sued for $6 million.

In the article I read, Mr Mortimer, the complainant, was reported as saying:

[It] casts doubt on my community standing. Discredits my Aboriginality internationally. Undermines my confidence. Treats me contemptuously, disrespectfully and offensively.

Regardless of the motivation, do any of us have a right to the protection of the state and the application of the full force of law against any damage to our confidence, being disrespected or offended? If so, then we should get moving on a dramatic expansion of a soon-to-be-very-busy judiciary.

The judgement of Justice Mordecai Bromberg in the Bolt case outlines this view in more detail:

At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance.

There are several assumptions here that I disagree with and I think many Australians would challenge as well—or at least need a lot of convincing. Why does the idea of multiculturalism entail the freedom to make a decision without consequence? That is to be free from pressure not to do so, or being free from criticism or disdain?

I am a defender of multiculturalism, despite the fact that there is so much argument over the word itself, which is often a distraction. But this is not a broadly accepted test of what multiculturalism is. If it is to be the newly established test, then multiculturalism has just lost a defender.

The difference between simple tolerance and legislated, compulsory acceptance is critical here. Legislation that attempts to force acceptance through preventing criticism is likely to be much more destructive of racial tolerance than simply allowing the criticism and dealing with it, fair or otherwise. The risk of backlash against people, policies and ideas that are protected by special laws, subjective judgements and selective enforcement is a much greater driver of increased racial tension.

This law also has a chilling effect. As the Aitkin case may illustrate, the mere threat of legal action can also bring the threat of ruin. An overly sensitive victim of my criticism, a trigger-happy pro bono lawyer and my family could lose their home. This may not only occur as the result of an opinion that is in breach of the law, but for an opinion that is not. Most people have no capacity to defend themselves against such actions. And it may even be for a comment that does not promote, espouse or threaten violence. Comments on particular threads on Andrew Bolt’s blogs are closed—even when they are moderated. This is at least partly due to the risk of legal action.

The test is so subjective that it is much harder to police than the law of defamation. Other bloggers I know are concerned about a single vexatious litigant attempting to make a point against something they might post, for example on a contentious area of indigenous affairs. The law then becomes a tool of political debate, wielded by one side only of course. One prominent publishing website, Online Opinion, is limiting discussion of these issues more than it did previously because of this legal risk.

I believe there are also important opportunity costs to this legalistic approach

Another liberal icon John Stuart Mill said the best way to address bad speech was more speech. I firmly believe that we undervalue this approach. The best way to address ignorance and tackle racism is to attack it—not suppress it.

There are many despicable opinions in the world today. In Australia and around the world, there are individuals and groups who hold opinions that are poorly formed, that are obnoxious, and that we strongly disagree with. But offensive speech, particularly racist speech, should not simply be shut down. It should be attacked, repudiated and disproven. It should be prominently and expeditiously pilloried in such a fashion so as to make it unacceptable, even mocked.

The best laws will not protect people from widespread racism, it is community attitudes that are critical. That appalling abuse we saw against a young French-speaker on a Melbourne bus recently will not be stopped by laws. It will be stopped by people feeling the need and duty to step in—and, I might add, feeling safe enough to do so.

Our true objective is ensuring community norms encourage people to feel a right and duty to speak out to condemn racism. And while I understand the argument that laws may underpin community norms, I disagree that this is the most effective way to maintain and develop them. Effective repudiation is what will influence community norms the most.

Look at Europe—extensive racial vilification laws have done nothing to address the rise in modern anti-Semitism. Yet the nation with the freest speech on earth—the United States—is the one with of the most secure ethnic communities, indeed with the most secure communities of victimised minorities from around the world.

The real problem with the use of legal processes to address these issues is that it also shuts down the opportunity to publicly repudiate them, and to do so quite viciously if necessary—or even to undertake a bit of comedic humiliation when we move from the merely offensively racist to the ridiculous conspiracy theory.

To ban the offensive Holocaust denier is also to restrict our opportunity to humiliate that person and disprove his or her ideas. To silence some preacher spewing anti-Islamic hate is to prevent us condemning that person and demanding correction and repudiation by his followers, or letting it be known who they are. It is our reaction to racism that is most important.

It is through our combating racism that we beat it—not through suppressing it. It is too easy then to pretend it does not exist. We must not just win these battles, we must be seen to win them. To do that we must combat it publicly, in the full glare of the public.

I am also fearful of the risk of future applications of these laws.

What of the risk of the meaning and application of this provision changing? What if one day Zionism was deemed to be racist and action was taken against those who supported the Jewish state? Sadly I can too easily imagine that happening.

We know some sections of our universities use a logic not unlike section 18C—offence is in the eye of the beholder. I have sat in meetings when I was a student and staff member at one of our universities and been told support for Israel is racist. While many cannot imagine it happening right now, who could rule it out?

Some nations use simple defamation law to stifle speech. Do we really want these institutions and levers in place if we are uncertain about their use? This is one of the most important liberal critiques of laws that limit speech.

I also fear that aggressive use of legal provisions threatens an important national consensus. The Racial Discrimination Act was introduced in the dying days of the Whitlam government. It now forms a central part of our polity, the broad principles that it reflects form a special part of the corpus of law in modern Australia.

Section 18C came two decades later, to prohibit statements that are “reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people” on the grounds of race or ethnicity.

It has always been more contentious and always had a significant degree of liberal opposition. This opposition comprises many who are just as committed to combating racism in all its forms, but at the same time, are sceptical of state imposed restrictions on speech.

One of the real concerns I have with the existing section 18C is that it damages the entire anti-discrimination regime. The subjective nature of the offence, the wide variance in its application and now I fear its increasing use merely to bring attention to an issue or to attack an opponent, as well as the more widespread scepticism of limits on speech all pose the risk of public support being challenged.

I, for example, have always been uncomfortable with the Commonwealth’s use of the external affairs power to expand its jurisdiction beyond the scope of the authority granted by the people. But in this case I support the Racial Discrimination Act as it is a law that limits the capacity of the state to discriminate based on race.

It is an act that empowers and protects the individual from the mob, the state, and even the tyranny of a local majority. But as a liberal it is those same values that concern me about section 18C and the threat it poses to speech.

For I also have a fear of a self-defined elitist mob using the state’s legal mechanisms and the tyranny of a temporary majority preventing people voicing unpopular opinions. I hasten to add again that it is not the racist speech I am particularly afraid of being banned. But limits on speech have a habit of being slippery and expanding in nature.

In November, the Gillard Government released its exposure draft of its proposed consolidated Anti-Discrimination Bill. My initial reading of it leads me to believe it poses a further serious threat to the national consensus I mentioned earlier. The dramatic expansion of the grounds to claim discrimination and the reversal of the onus of proof are as significant a threat to wide public support for anti-discrimination laws as I could imagine. Combined with the threat posed by the continued selective operation of section 18C, I genuinely believe the status quo is not an option.

As for Labor’s proposed bill I cannot jump ahead of our party’s consideration, but let me simply say I am glad the proposed bill is only an exposure draft. So I suggest an alternative.

There will always be racism. There will always be ignorance. And we need to deal with them.

Despite the inevitable presence of highly offensive speech, our case is stronger for it being fought publicly, rather than through legal fights over the offensive terminology of banners and speeches.

For other communities in Australia that feel marginalised, they would do well to learn from the local Jewish community. Education, outreach and leadership in the media are, in my opinion, far more effective methods of fighting back than through the courts. These techniques reach thousands of people and the ripple effect is immeasurable.

So if we amend section 18C, our community leaders need to step up—and by that I mean politicians, business, ethnic, religious and other leaders. From the politician to the footy coach. We should repudiate the views that are offensive.

I promise you that I will continue to speak out, as I already have on many issues, including anti-Semitism.

Freedom of speech requires both sides to compete, and occasionally to even fight, in the marketplace of ideas. In this respect I am an optimist about Australia and Australians. Just as we have over the last half century, this is a battle we will continue to win.

These are edited remarks of Scott Ryan at the Executive Council of Australian Jewry, November 2012.

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