Free thinking?

Many say freedom of expression means nothing if it doesn’t entail a freedom to offend others. Enjoying such freedom means that you may also have to tolerate hurtful or distasteful speech. But what if the burden of tolerance is not borne equally? What if some forms of speech wound not merely sensibilities but also another person’s dignity? How should a liberal democracy treat forms of speech that degrade others because of their race?

Since 1995, Australian law has prohibited acts of racial vilification in public. This legal protection against racism was a response to mounting community concern about racist abuse and violence. For most of the past two decades, the law has been a source of little controversy, and accepted as part of the legislative expression of Australian multiculturalism.

Yet the vilification provisions of the Federal Racial Discrimination Act 1975 have recently been subject to intense debate. During last year’s election campaign, the then Liberal-conservative opposition pledged to repeal the part of the Act concerned with vilification. Then the conservatives won the election. Subsequently, in March this year, the Federal Government released a draft of proposed amendments to the Act.

The Federal Government argued its proposed amendment would enhance freedom of speech, but there was overwhelming public opposition to the mooted change. An opinion poll in April showed that 88 per cent of Australians believed the law should stay as it is. Aboriginal and ethnic community groups, along with human rights organisations, have expressed their serious concern that amending the law may have the effect of licensing racial hatred. Remarks by the Federal Attorney-General endorsing a ‘right to be a bigot’ appear only to have confirmed such anxiety.

In August, the federal government backed down on its planned reforms. Prime Minister Tony Abbott said he was making a ‘leadership call’ not to proceed with the proposed changes. According to the Prime Minister, ‘I want to work with the communities of our country as Team Australia.’

Looking back, this was in many ways a strange debate. No compelling reason was put forward for changing the law. There was little public clamour for reform, even if influential sections of the Australian media were stirred by a cause celebre in 2011 involving conservative newspaper columnist Andrew Bolt. Following articles written about ‘fair-skinned’ Aboriginal people, Bolt was found to have contravened the Racial Discrimination Act.

Section 18C of the Act makes it unlawful to ‘offend, insult, humiliate or intimidate’ another person on racial or ethnic grounds in public (religion isn’t an attribute covered by the law). This is balanced by section 18D, which protects anything that is done as artistic work, scientific inquiry or fair comment and reporting – provided it is done reasonably and in good faith. In Bolt’s case, the court found that Bolt didn’t enjoy this broad protection of fair comment given he had combined errors of fact, distortions of the truth, and inflammatory language.

Much public commentary has misleadingly referred to Bolt being ‘prosecuted’ and ‘convicted’ under the Act. Unlike laws concerning racial vilification elsewhere, however, Australian federal discrimination law isn’t criminal in nature. It merely provides for civil and educative remedies for racial discrimination. People who believe they have experienced unlawful discrimination can make a complaint, which then proceeds to conciliation conducted by the Australian Human Rights Commission. Only when conciliation fails may a complainant take the matter to court (which occurs only rarely).

The operation of the law aside, there are questions about the philosophical principles concerning free speech.

There is clear community recognition of one thing: free speech is not absolute. But where the line is drawn is rightly open to contention. Under the current law, the limits are drawn at acts which ‘offend, insult, humiliate or intimidate’ on racial grounds. Proponents of section 18C’s repeal argue that there is a chilling effect in making offensive or insulting speech unlawful.

If this were the case under the current law, that would be a problem that warrants attention. But the courts have interpreted the law only to be concerned with those acts that cause ‘serious and profound effects’ as opposed to ‘mere slights’. In other words, the law sets the bar much higher than trivial offence or hurt feelings on the grounds of race. The courts have also given a broad interpretation of the free speech exemption currently enjoyed under section 18D. Numerous complaints involving people being offended or insulted on racial grounds by artistic works or political opinion have failed.

The Federal Government’s proposed reforms drew the line in a manner that not many Australians agree is appropriate. Namely, it proposed that only acts that incite racial hatred or physically intimidate on racial grounds be made unlawful. Anything that is done when participating in ‘public discussion’, meanwhile, would be protected speech.

This combination would have done more than  narrow the scope of prohibited conduct; it would have removed the requirements of reasonableness and good faith in the law’s current free speech exemption. It wasn’t clear what, if any, conduct would have been unlawful. Those who conduct themselves dishonestly or in bad faith would have been protected from being held accountable for racial vilification. For example, virulent anti-Semitism and Holocaust denial – which have been found to contravene the existing law – would likely have been protected speech under the Federal Government’s proposals, given they could be justified as public discussion. Many forms of racial abuse in public would likely have been beyond the reach of a complaint, unless it could be demonstrated they could incite a third party to racial hatred or cause direct physical intimidation.

Those favouring an absolutist view of free speech may invoke the wisdom of John Stuart Mill: there ‘ought to exist the fullest liberty of professing and discussing, as a matter of conviction, any doctrine, however immoral it may be considered’. Only where there is incitement of physical harm, it could be argued, are we justified in limiting speech. Furthermore, where there is ‘bad speech’ – including racist hate speech – we should rely on the marketplace of ideas to sort it out.

A liberal understanding of free speech, however, should always be placed in context. Even for a seminal defender of free speech such as Mill, the defence of liberty was ultimately concerned with the value of individuality. Free speech mattered for Mill not just because it enabled the discovery of truth, but also because it was necessary for self-realisation.

This point about individuality is important. Hearing wrong and distasteful views is one thing – but what if hearing those views has the effect of distorting a person’s individuality? What if the expression of such views has the effect of silencing others? Would a Millian liberalism endorse hate speech if it harms another person’s ability to realise their potential as an individual?

In any debate about racism and freedom of speech, we should remember that one of the profound effects of racist abuse is it diminishes those who are its targets. Racism can make people feel unsafe in public places. It can also make it more difficult for people to exercise their own freedom of speech.

Indeed, this is one reason why it seems limiting to confine the task of combating bad speech with good speech. Social power matters. More speech can be easy to prescribe if you are an articulate and well-educated professional, or someone accustomed to enjoying social privilege. But it would be unrealistic to expect that the speech of the strong can be countered by the speech of the vulnerable. Not everyone is in a position of parity to speak back. In any case, you can’t assume that racism can be countered by a well-reasoned riposte. Those perpetuating racism mightn’t be persuaded to change their mind through reason – simply because racism isn’t always rational in the first place.

It is for these reasons that the law can play an important role in striking the proper balance between freedom of speech and freedom from racial discrimination. In a liberal democracy, we value free speech because it is tied to the dignity of the individual. If that is the case, we should also recognise that some forms of speech can inflict serious harms on others.

The law, of course, cannot on its own ever eradicate racial discrimination. But it can reflect and promote social values; after all, it regulates many aspects of life, serving to shape people’s conduct and behaviour. In the area of speech, it is striking that for all of the existing suite of legislation that restricts expression – in national security, communications, trade practices, and public order – so much attention has lately been placed on a provision that was introduced to provide a civil remedy for those subjected to racial abuse and harassment.

The strong support for the current Racial Discrimination Act affirms Australian society’s deep commitment to racial tolerance. It affirms that Australians not only value living in a society that condemns racism, but that they believe it is right that their laws reflect their values – that the law should play a part in setting a civil tone in a liberal democratic society. Quite rightly, there was concern that a weakening of current laws may have the effect of emboldening a minority to believe they can racially abuse others with impunity.

It was a welcome move from the Prime Minister to abandon the proposed reform of the Act. While debates about race can often divide more than unite, the contest over section 18C has united Australians in one sense. The vast majority of Australians agree that a right to be a bigot must not outweigh a right to be free from bigotry’s effects.