The Intimacy of Free Speech

Chris Berg writes about free speech, defamation law and foundational rights in Australia.

In 1994, the Keating government introduced the Racial Hatred Bill into the Commonwealth Parliament. The Bill had been created in response to a series of public policy reports in the early 1990s: the findings of the 1991 Royal Commission into Aboriginal Deaths in Custody, and those of inquiries into racial violence and the legal foundations of multiculturalism. That Bill gave us section 18C of the Racial Discrimination Act, which made it unlawful to ‘offend, insult, humiliate or intimidate’ a person or group on the basis of their ‘race, colour or national or ethnic origin’.

In many ways, this section far exceeded what the three reports had recommended, as even the parliamentary library recognised at the time. They had advocated making incitement to racial hatred or hostility unlawful. The idea of being able to take someone to court for offense or insult on racial grounds, however, was that of the Keating government. It was also widely understood that the new section would constitute a limit on freedom of speech. As the public intellectual Robert Manne wrote:

Almost every week, even without trying, I come across — in the ethnic press or in the publications of extremist political groups — statements that are absolutely certain to cause deep ethnic offence and insult … I had assumed that the tradition of free speech went so deep in this country that it was simply inconceivable that any Australian parliament would even consider rendering comments such as the ones I have cited unlawful.

In the two decades since, section 18C has done little in any practical sense to moderate racism in Australia. The Keating government claimed the law would be a ‘safety net for racial harmony’. But as the commentator Waleed Aly has pointed out: ‘I’ve copped my share of racial abuse both in public and in private, and section 18C wasn’t ever going to do a damn thing about it’. In practice, section 18C is used less for high-profile actions like the famous Andrew Bolt case in 2011, where the conservative commentator was found to have unlawfully vilified lighter-skinned Aboriginal people, and more for cases involving family feuds and racially tinged insults. In Aly’s view, the debate about section 18C since the Bolt case was ‘not exactly playing for cutthroat stakes’, although he was opposed to the Abbott government’s proposed reform of the section.

You are reading an extract from The Libertarian Alternative by Chris Berg

There are few values more central to the libertarian world view than freedom of speech. Expression is the basic currency of any community or social group, even one-on-one relationships. It is the first means by which we relate to other people, positively or negatively. The principle of free speech grew out of a liberty which was both more material and otherworldly, that of religious toleration and freedom of conscience. John Stuart Mill made the point that religious freedom was the first, most important freedom of the early modern era. Our ancestors had religion at the centre of their world view in a way that it is alien to us today. The expression of religious views — on internal matters of private faith — was consequently the first battleground for free speech, and the great theorists of freedom of speech focused on religious controversies rather than political ones. These origins are important because they situate the right to free speech as the outward form of a more important freedom: freedom of thought. It is our thoughts, preferences, ideas, opinions, and beliefs which make us individuals.

Protecting free speech, even in light of racial or otherwise offensive language, is not a matter of allowing the majority to verbally oppress minorities. It was minority religious groups that needed freedom of speech in the pre-modern world. Majorities always have the weight of public opinion running with them; they always have friends in government, parliament, the courts, businesses and schools. Individual rights like freedom of speech are what we call ‘counter-majoritarian’ institutions — they do not rely on majority approval for their existence. In this way they can help, rather than harm, the interests of minority groups. Protecting speech means protecting the speech of everybody, including dissidents within apparently oppressed ethnic blocs. The writer Kenan Malik argues:

The irony is that those who most suffer from a culture of censorship are minority communities themselves. Any kind of social change or social progress necessarily means offending some deeply held sensibilities. ‘You can’t say that!’ is all too often the response of those in power to having their power challenged. To accept that certain things cannot be said is to accept that certain forms of power cannot be challenged. The right to ‘subject each others’ fundamental beliefs to criticism’ is the bedrock of an open, diverse society. Once we give up such a right in the name of ‘tolerance’ or ‘respect’, we constrain our ability to confront those in power, and therefore to challenge injustice.

Freedom of speech is a tool used by members of minority groups for internal debate. As Malik writes: ‘What is called “offence to a community” is more often than not actually a struggle within communities’. Again, by grouping people into ethnic blocs rather than treating them as individuals, the law assumes that all those people have the same interests, rather than recognising that they have specific, unique interests.

Section 18C is hardly the only constraint on freedom of speech in Australia’s statute books. There are dozens more. But it is an emblematic one, a symbol of the turn against free expression under the banner of banning ‘hate speech’ that has spread across the Western world over the last half-century. Almost every Western country now has some form of hate speech restriction. The only exception is the United States, whose First Amendment protections make it constitutionally impossible to impose anti-hate-speech laws.

In Australia, swearing in public is prohibited. Our classification system acts as a de facto censorship system when it refuses to lend its imprimatur to certain films, literature and video games, thereby making their sale unlawful. There are special laws about what can be said during radio and television broadcasts. So-called ‘commercial speech’ is subject to different standards than non-commercial speech. There are constraints on what we can say during political campaigns. Australian regulators have the ability to censor the internet through the website blocking powers allowed by section 313 of the Telecommunications Act, and under the guise of copyright enforcement. Courts routinely suppress public discussion of current legal cases, as well as the discussion of those suppression orders. One such ‘super-injunction’ was applied to a corruption case in 2014 that involved the most important financial institution of the Commonwealth Government, the Reserve Bank of Australia — a case which voters and other decision-makers should have known about. And the old crime of sedition has not only been revived since the September 11 terrorist attacks, it has been boosted to constitute an ever-expanding class of speech.

One particularly excessive and anachronistic limit on free speech is Australia’s defamation laws. Like hate speech regulations, defamation laws pivot upon an interpretation of the gullibility and helplessness of the population which assumes that Australians are capricious and quick to judge, and stubbornly hold onto false information. But as the legal scholar Roy Baker found, there is a vast gap between the ‘ordinary reasonable person’ test applied in defamation law and actual ordinary reasonable people. Lawyers and judges have concocted the idea of the ordinary reasonable person in order to hypothesise how potentially defamatory speech might be received in the community. Baker cleverly decided to test this notion by asking both lawyers and members of the general public whether they would think less of someone if they were accused of a number of moral violations (like drunkenness, sex before marriage, and being a police informant). Baker found that the legal ordinary reasonable person ‘emerges as a censorious person: quick to condemn, slow to question, open to insinuation, closed to reason’. The general public, by contrast, ‘could be rather more tolerant and accepting than many of us think’. This finding no doubt applies to hate speech litigation as well: the law thinks we are more judgemental and less sceptical than we really are.

Just as significant is the fact that defamation laws are tools of the wealthy. Such legal action is very expensive — lawyers aren’t cheap. The irony is that almost everybody who can afford to sue for defamation has the resources to correct false information about themselves. And, of course, defamation can also suppress debate about important matters of public interest. Even the threat of it is enough to have a so-called ‘chilling effect’ on free speech.

Protecting freedom of speech doesn’t just mean protecting words that are written down or spoken out loud. It means protecting all forms of expression, acts which are intended to express an opinion about something — at least in so far as doing so does not violate the equal rights of other people. The importance of the right to free speech is founded not in words but internal thoughts. That means a silent protest or vigil would constitute free speech, even though no words are uttered, but punching a public figure in the face would not be considered legitimate, protected political commentary. Many of our activities have some form of expressive content. Decisions to boycott firms due to ethical violations are ‘speech’ in this philosophically important sense, and attempts to prohibit boycotts — even so-called ‘secondary’ boycotts, where downstream suppliers or customers of the targeted company are also targeted by a boycott — constitute a limit on the free speech right.

In this way, the choices we make about how to spend our money, or even how to earn it, can be speech. In recent years, the accused terrorist David Hicks and the convicted drug smuggler Schapelle Corby have come up against laws which prohibit people from earning money for selling their story under literary proceeds of crime legislation. In the Corby case, the controversy even led to a raid by the Australian Federal Police on Channel Seven’s Sydney offices because it was suspected that the broadcaster was paying for an interview with Corby shortly after her release from a Bali prison. It is hard not to see this as a constraint on Corby’s expression and, of course, Channel Seven’s. Courts are increasingly recognising that donations to political parties are forms of expression as well. This has been a principle long understood in the United States. In Australia, the High Court found in 2013 that laws against donations by organisations (particularly the union movement) to political parties were a violation of the Constitution’s implied right to political communication. To limit the financial resources which make speech possible is to limit speech. And when we voluntarily form associations, whether those associations are unions or businesses or community action groups, we don’t lose our individual right to freedom of speech.

We often hear that human rights are in a constant tug of war with each other — that they need to be weighed up as individual circumstances dictated by competent judges and authorities, to decide whose rights trumps whose. This is how we end up with anti-discrimination rights overriding speech rights. Some of the most basic human rights — the so-called ‘traditional’ human rights — are the first to have been denigrated in the search for new rights. Freedom of speech is one of those, alongside freedom of association.

All rights might be desirable, but not all rights are equal. Some rights require a foundation of other rights to be fully exploited by rights holders. Free speech is one of those foundational rights. Speech and thought are at the heart of our individuality. They are the basis on which we form relationships and communities, which, alongside political systems, allow us to pursue higher-order goals like anti-discrimination and social equity. What good are laws to enhance human dignity if the people whose dignity has apparently been enhanced are also prevented from being able to fully exercise their freedom of conscience and expression?

The Libertarian Alternative is out now.