This article from the April 2012 edition of the IPA Review is by cabinet minister in the Howard government, and Fellow with the Australia and New Zealand School of Government, Dr David Kemp.
Infringements on freedom of speech are hard to justify, and they should be. The public debate that grows out of freedom of speech is the fundamental social process we use in a democracy to get things right-to sort out the good arguments from the bad, the true fact from the false.
Freedom of speech is one of the major reasons why democracies have happier populations than dictatorships, and for all the errors that are made by democratic governments in public policy, democracies have an inbuilt mechanism in free debate to correct errors over time.
Freedom of speech is also acknowledged as a fundamental human right, without which our very humanity is put into question. If we cannot say what we think, our very identity and worth as a free person is challenged. To lose our freedom of speech, as with our other freedoms, is to be humiliated by those who exercise power over us for their own purposes.
As the English essayist William Hazlitt once wrote: ‘The love of liberty is the love of others; the love of power is the love of ourselves’.
This helps to explain why people who are not philosophers, nor social theorists, defend free speech so passionately. Someone who takes away their free speech takes away something that is vital to defining who they are and their self-worth: their right to say what they think.
It is important to make this point, because those such as Michael Lavarch, the Keating government Attorney-General responsible for amending the Racial Discrimination Act, and Ron Merkel, the lead barrister in the case against Andrew Bolt, who seek to justify a more extensive restriction on free speech put identity at the centre of their arguments, and argue that a person’s self-confidence in their identity should be protected by law.
They are right in saying that identity is of great importance, but it is a much broader debate that they have acknowledged.
Unlike the former Attorney General, Merkel makes no claim that the racial hatred law does not restrict freedom of speech. He concedes that it does, and that it is an addition to the list of such laws, such as laws against defamation, laws against shouting fire in a crowded theatre (which may cause panic and physical harm to people), and laws prohibiting commercial deceit and fraud.
Lavarch and Merkel mount a number of arguments for the law the former initiated and the latter defends. Each is flawed. Their arguments are that firstly, the kind of speech prohibited by the Racial Discrimination Act can lead to social upheaval and turmoil.
Merkel indeed draws our attention to the fact that ‘the resulting social dislocation and potential turmoil of such speech, like shouting fire in a crowded theatre’ is covered by an international convention.
The suggestion that Bolt’s articles were likely to lead to ‘social dislocation and turmoil’ or that they were in any way analogous to shouting fire in a crowded theatre is nonsense and not credible. Nor has any evidence been adduced to support the claim. Merkel’s attempts to pump up the seriousness of the implications of Bolt’s articles and indeed to claim that they were Nazi-like and based on a theory of eugenics were not only grossly exaggerated, but were an abuse of the freedom of speech he had as a lawyer in a court.
In fact I admit that it was my initial horror that such gross vilification of an individual could be permitted in one of our courts of law without reprimand that aroused my deepest concerns in this case.
As a former member of parliament I treasured the privileged right to speak without restraint in the parliament as a fundamental protection of our democratic liberties, but like all my colleagues I understood that this absolute freedom needed to be exercised in an ethical way. When the rare event occurred that a member was seen to have breached this ethic this was clearly made known.
The same applies to our courts. If there is absolute freedom to make a case, as there must be, it must be exercised with a deep ethical awareness. Merkel complains about the hurt Bolt caused others, as he was entitled to do. His task was to bring Bolt’s articles under a very broad prohibition. That does not excuse such an attack on a journalist, the main point of whose articles was to argue that we should not pass laws which privilege and reward those who wish to draw distinctions between themselves and the rest of the community.
Clearly, and understandably, Merkel has in mind that there was a time in another country that was not a democracy, whose judicial system had been corrupted and intimidated, when racial vilification accompanied horrific genocide. I am doubtful that this has any relevance to the law in modern day Australia, but if it does its relevance is reflected in laws against ‘holocaust denial’.
I was always opposed to such laws because of the precedent they might set for further infringements on freedom of speech. Generally the view was taken that the circumstance was unique. Merkel admits that such laws have set a precedent and his argument demonstrates that the concern in a particular case has been extended in a very threatening way.
Secondly, they say that the law should protect people against ‘intimidation’ by speech.
Merkel accepts without justification the very low bar set by the Lavarch law, which provides that someone may be guilty of the offence of racial vilification if someone is ‘offended, insulted, humiliated or intimidated’ by the words of another.
He does not consider whether such a law could have a chilling effect on free speech. Instead he argues that ‘intimidation’-not physically, but by another’s words-is indeed bad enough to be prohibited by law.
Merkel argues that Bolt’s words were particularly ‘pernicious’ because they might intimidate ‘younger Aboriginal people who may be more apprehensive about publicly identifying as Aboriginal’. The plaintiffs themselves, obviously, were not so intimidated, because they did publicly identify themselves as Aboriginal. It is unnamed others who ‘might’ be intimidated.
That words may prevent a person from publicly identifying themselves as members of a ‘group’ is a well-known phenomenon. Many people keep their identity secret because they belong to a category they believe is vilified. Homosexuals commonly feel this. Christians today often feel this in many settings, and indeed have recently been persecuted and killed in countries to our north. Muslims often complain about misrepresentation of their religion. Class vilification, which in the last century was associated with more violent deaths than race, is almost an Australian sport, which does not mean that it is not deeply hurtful to those vilified. In each of these cases I have known Australians who are intimidated from revealing their identity on each of these bases.
Freedom of speech is used by some to hurt others, and vilify the category to which they belong. This is morally wrong. But the case for making it illegal has not been made. In fact there is probably no society in the world where it is less likely that hateful speech will cause social dislocation and turmoil.
Thirdly, they argue that legal processes can and should be substituted for freedom of speech to impose civility in public discourse.
It is a massive step to take to assert that hauling people before tribunals to reprimand them for speaking in a hurtful way of others (and using the tribunal to officially intimidate them from doing so) will create a tolerant and civil society, or perhaps ensure that everyone speaks in a politically correct way. Merkel is quite open that he has lost faith in freedom of speech (and hence, democracy). Merkel apparently thinks that legal intimidation is an ‘educative’ process. That is what the Church thought in medieval times or the Puritans in the seventeenth century. We had come a long way until people like Lavarch and Merkel have sought to take us back.
To substitute tribunals for freedoms is not a minor thing. It is a systemic change, and will either be reversed or toll the death knell of liberal democracy.
Fourthly, they believe that the justification for a law protecting an individual against defamation applies equally to ‘group defamation’.
Merkel claims that ‘the same balance has been struck with freedom of speech in both categories’. It takes a moment’s consideration to realise that the actual situation is nothing of the kind. Apart from other differences, the law against individual defamation applies equally to all. The law he defends applies to a privileged identity group only. It erodes the concept of equality of the law by conferring unequal rights. If the law attempted to protect all identities against offence and intimidation our legal system would collapse, and we would truly have a war of all against all. That way lies madness.
If we have learnt anything from our long experience in this country of freedom of speech, it is that democracies abhor privilege, and that all are entitled to be treated equally under law. Equally, our societies have surely become more humane and tolerant over time through the processes of freedom.
Finally, they suggest that the Federal Court found the Act had the ‘balance’ right between freedom and restriction.
The Federal Court found nothing about the Act, nor could it. That was not its task. It did not hear appropriate evidence to make a judgement about the policy of the Act nor was it the task of the court to determine the appropriateness of the wording of the law. Justice Bromberg’s task was not to assess the Act. His job was to apply the law, flawed or not.
Those who do not wish to spend the rest of their lives being ruled by tribunals imposing political correctness and intimidating us in our exercise of free speech will be relieved to know that 82 per cent of Australians, according to a recent Galaxy poll, commissioned by the IPA, support the freedom to say what we think even if it offends some people.
I intend to defend my identity as a free person and I am certain that it will not be well defended by a tribunal. It will be best defended by giving equal freedom to all, and I intend to do what I can to make sure the obnoxious and unequal law that Lavarch initiated and Merkel supports is repealed.