Freedom of speech is an odd creature in Australia. Unlike our brothers and sisters in America, we have no explicit constitutional right to exclude the government from abridging our freedom of expression. There is an implied freedom of political communication, but even those among you who are not legally trained will notice that ‘political communication’ and ‘freedom of speech’ do not equate to the same thing. This distinction has been poignant recently, especially concerning the controversial proposed amendments to s 18C of the Racial Discrimination Act. While there are constitutional arguments that s 18C is invalid, I think the stronger case is an ethical and philosophical one.
Freedom of speech is a comparatively recent right. This makes sense when set in the context of history: absolute monarchs were understandably reticent to have their opinions and authority questioned. John Stuart Mill is still, in my humble opinion, the most eloquent and robust advocate for freedom of speech. For those unfamiliar with his philosophy, Mill used his harm principle to argue that speech cannot be curtailed unless it directly and in the first instance invades the rights of another person. This is a very narrow limit placed on free speech. Mill justifies this position by laying out the benefits of free expression. These are, chiefly, the fact that the free discussion of ideas leads more readily to truth than does curtailing speech in favour of protecting the sensibilities of society; and that allowing people to be exposed to various points of view and letting them come to their own conclusions on a topic is far more rewarding and fulfilling than giving them the answers. He said specifically in the footnotes to Chapter 2 of On Liberty:
‘If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.’
This might seem extreme, but it makes sense from a philosophical perspective. The obvious fact that the number of people who believe something has no bearing on the truth of the belief is enough to be said in defence. Mill stated:
‘If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.’
I feel compelled to mention at this juncture that just because someone holds a belief, as Mill says, as a matter of ethical conviction, it doesn’t give that person any rights against criticism or ridicule. On the contrary, those are the tools to which society has recourse in order to correct delinquent opinion. Government interference, while vital in some areas, is too cumbersome to be relied upon in the area of speech. Who among us would volunteer themselves to be a censor? I would venture to say that any who would put their name forward would be disqualified on that basis alone. As part of the discussion, I feel it is worth mentioning that I claim the right not only to not be censored, but also not to be a censor. I want to promote, not hinder, the free exchange of ideas that leads to the flourishing of any society.
With specific reference to s 18C, there is much to discuss. If you refer to the legislation, and you really should (it’s only a short read and will allow you to form your own opinions on the subject. The link is here. You’ll see that the infamous section is pretty damning. It states that you cannot perform an act in public if that act is likely to offend, insult, humiliate, or intimidate a person based on their race, colour, or national or ethnic origin. Without reference to the rest of that act, that is an appallingly broad restriction on speech. I can’t make a joke about a person based on their ethnicity if it is likely to cause them offence? While I appreciate that sentiment, offence or insult are not good enough reasons to stop someone talking. Not only are they absurdly easy threshold tests, but they are inherently subjective. What one person might find deeply hurtful and offensive, another might laugh about. While the relevant jurisprudence surrounding the section has included a ‘reasonable person’ test, this is insufficient to protect a person’s right to offend and insult. Without those two components, freedom of speech is hollow and meaningless, especially in an age where any likely censorship board will trend towards a victim mentality rather than an appreciative sense of humour and irony.
While most people who follow my logic this far usually start calling for amendment or repeal, I think the case can be strengthened by reading further. Section 18D sets out relevant exceptions: firstly, if a statement is made in the performance, exhibition, or distribution of an artistic work, it is exempt; secondly, any statement made for a genuine artistic, scientific or academic purpose is exempt; finally, any statement made in the course of a fair and accurate report on a matter of public interest or a fair comment if the belief expressed in genuinely held by the person making the statement. These exceptions also carry the caveats having to be made reasonably and in good faith. It’s hard to see what effect 18C has in the light of these exceptions. The one area that appears to carry liability is if the report being made is deliberately misleading. If Mill is to be believed though, the whole point of freedom of speech is to allow society to work out what is true from what isn’t on their own terms and without government interference. Why should I be prevented from making an unreasonable attack on Muslims, for instance? Even if it is my sincerely held belief, its unreasonableness will render my statement unlawful. While I despise the people who feel that way, I don’t think silencing them will help. Allowing people to express all of their most depraved opinions in public means that society can correct them through reason and discourse, and if that is unsuccessful, then the people who espouse them are marginalised. By making public announcement of unpalatable opinions about race and ethnicity illegal, we simply treat the symptoms of racism without addressing the root cause. It’s like taking cold tablets for the flu instead of getting vaccinated. While it makes society feel better at the time, it doesn’t protect it from another outbreak. Racism is a stupid idea, and the way to combat stupid ideas is with better ideas, not with legislation.
Recent comments made by Dr Anne Aly (West Australian Labor MP), indicate that Labor, given the chance, would expand the wording of section 18C to include religion as a protected category of character trait alongside race and ethnicity. While I acknowledge that many people hold an unjustified animus against Muslims, sneaking anti-blasphemy laws into Australian society is guaranteed to solve nothing. In an interview with The Australian, Dr Aly said,
‘I find it a little bit strange that someone can call you a ‘dirty Arab’ and that be covered under the bill, but if they called you a ‘dirty Muslim’, you’re not covered (under 18C).’
This is an excellent point. Neither scenario should be a crime. If we start legislating what people can say and think about religion, we have truly abandoned our enlightenment roots. Whatever your personal beliefs, all religions contain nonsense. Some religions diversify and preach barbaric nonsense. It may be unpalatable for many to accept, but one of the main paradigms of violent, religious prattle is Islam. Not every interpretation, to be sure, but we aren’t currently living through the scourge of Amish terrorism. Noticing the differences between religions and commenting on that fact shouldn’t be illegal. Noticing that beliefs drive behaviour and that some beliefs are religious in nature shouldn’t be illegal. Now, you may say that I’ve made a lateral move from insulting someone for being a Muslim to criticising religious dogma. That’s true, but I’m not condoning that kind of speech. I am simply of the view that regardless of the content of one’s speech, short of inciting violence, one should be allowed to speak. I walked past a Christian preacher on the street today. He was babbling all sorts of incoherent drivel about how unbelievers would burn in hell for their recognition that the book he loves so much was clearly a self-contradictory fairy tale (he may have used different words). I wouldn’t wish him to be silenced except out of consideration for pedestrians’ hearing. Ideas deserve criticism. Religion – that maelstrom of incoherence and fable – deserves criticism of the highest order. Any attempt to impinge on this right should be fought with the utmost resolve and tenacity.
In any democracy, the freedom to say what you think is vital. Free exchange of ideas should be fostered even if the ideas themselves are abhorrent. Closing avenues of thought and debate are guaranteed to make society a less interesting place to live and a less vibrant place to think and speak. Freedom of speech is the wellspring of every other value that matters to democracy – defend it now or lose it forever.
As a post-script to this article, I would like to add that these views don’t make me a racist. In a time where that term is thrown about as often as Hitlerian accusations at anyone who even looks to the Right, it is a lamentable, but worthwhile, precaution. I wholeheartedly support the sections of the Racial Discrimination Act that prohibit discrimination by employers against prospective employees based on race and ethnicity and I support the restriction against inciting racial violence. But 18C is an impermissible abridgement of free speech and should not be tolerated in an open democracy.
Tom is a blogger and academic based in Australia. He is currently working to be admitted as a lawyer and wants to travel and write about his interest areas of politics, philosophy and science.