Crying Fire in a Crowded Theatre
Freedom of speech is an odd creature in Australia. Unlike our cousins in America, we have no explicit constitutional right to exclude the government from abridging our free speech. 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 proposed plebiscite on marriage equality and the controversial amendments to s 18C of the Racial Discrimination Act. While there are constitutional arguments that s 18C is invalid and that the plebiscite is inadvisable, 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, doesn't give that person any rights against criticism or ridicule. To 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? 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: http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/), 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 the sentiment, offence or insult are not good enough reasons to stop someone talking. Not only are they absurdly low threshold tests, but they are inherently subjective. What one aboriginal 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 two relevant exceptions: firstly, if a statement is found to be accurate, it cannot be discriminatory; secondly, if a belief is held genuinely it is exempt. These two exceptions also carry the caveats having to be made reasonably and in good faith. If Mill is to be believed, 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? 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 remove the symptoms of racism without addressing the root causes. It’s like taking cold and flu 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.
The plebiscite is another issue that begs for analysis in this context. While some commentators have mentioned s 18C with reference to the plebiscite, it should be clear to you that the two issues are totally separate, one being based on sexual orientation and one being based on race and ethnicity. There are several good political and practical arguments against holding a plebiscite, which I may cover at a later date, but there is also a philosophical one: an opinion held, no matter how fervently, shouldn’t be used to curtail someone else’s actions unless their actions will directly harm another person. This is simply a rephrasing of Mill’s harm principle. At this point, I don’t think anyone but the most ardent Jesus freaks still think that marriage equality will lead to the downfall of society. Ireland, the United Kingdom, America and New Zealand have all legalised gay marriage, and the sky is still firmly above our heads. The old trope that parents need to have different genitals to do a good job has been comprehensively debunked, with the vast majority of studies showing that children need a stable family environment with no impact made by the sex of the parents (you can read this here: http://www.apa.org/pi/lgbt/resources/parenting-full.pdf, here: https://aifs.gov.au/cfca/publications/same-sex-parented-families-australia/export, and here: http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2009.00678.x/full). The religious objection to the harm principle is so laughable, it can be dismissed with the well known anecdote about someone dieting and forcing everyone else to observe the same rules.
Some might think at this point that a plebiscite would give the opponents of marriage equality an opportunity to voice their concerns, but when considered in the context of the other reasons that a plebiscite is a dumb idea, that isn’t enough to recommend it. I think people should be able to express opposition to gay marriage, however misguided, they just shouldn’t be able to use that opposition to curtail the actions of gay couples who wish to marry. This is not a contradiction in my liberal view of free speech, it is a reinforcement of it.
As a post-script to this potentially controversial article, I would like to add that these views don’t make me a racist. In a time where that term is thrown around 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.