Freedom of speech is meaningless if all it entails is the liberty to express opinions approved by the state. Freedom of speech is richer than that.
It’s a fundamental human right – which is also vital to the proper operation of a functioning liberal democracy – that is breached whenever the state places restrictions upon it.
Section 18C is a law that gives individuals an avenue to punish others if they say things that may “offend, insult, humiliate or intimidate” a person on the basis of race. As a clear example of a restriction on expression imposed by the state, it therefore breaches the principle of free speech. Free speech advocates have sensibly called for the repeal of this law.
The debate has now reached a point where senators from a diverse range of parties – including the Coalition parties, Pauline Hanson’s One Nation Party, the Liberal Democratic Party, Family First Party, and the Derryn Hinch Justice Party – have co-sponsored a bill that proposes a modest reform.
All that is proposed by the bill is the removal of the words which set the lowest bar created by section 18C – “offend” and “insult”.
Some defenders of the status quo argue that section 18C does not breach free speech because “hate speech is not free speech”.
This is the kind of vacuous statement you might hear while wandering around a modern university campus. It’s a peculiar argument because it is so incoherent.
Of course “hate speech” is not “free speech”. Free speech is a normative principle of liberal moral philosophy, and hate speech is a (relatively unhelpful) label for a certain category of speech.
For the sake of the argument, let’s set aside pedantic arguments about syntax. The argument defenders of section 18C are attempting to advance is that the principle of freedom of speech does not protect expressions that might be classified as “hate speech”.
But the boundaries of what can reasonably be labelled hate speech are important. Even leftists who favour restrictions on hate speech, such as law and philosophy professor Jeremy Waldron, recognise that it does not include conduct which merely offends or insults.
Waldron, in his 2012 book, The Harm in Hate Speech, wrote: “Laws restricting hate speech aim to protect people’s dignity against assault … However, I do not believe that it should be the aim of these laws to prevent people from being offended. Protecting people’s feelings against offence is not an appropriate objective of the law.”
In Australia, the list of supporters for change to section 18C is incredibly diverse. Many on the political Left recognise that section 18C goes too far. They include barrister Julian Burnside QC, journalists David Marr and Gay Alcorn, Professor Sarah Joseph and ABC chairman Jim Spigelman.
Another argument advanced by those against change is that section 18C does not breach free speech because there are a range of “defences” available to protect defendants against legal sanction.
Section 18D is the provision that outlines these defences. They appear as a list of exemptions for conduct that might otherwise be found to breach section 18C. These include artistic work, statements, reports or fair comment made in the public interest. These exemptions appear, on their face, to be quite broad. They’re not.
In Bolt v Eatock, the Federal Court case against journalist Andrew Bolt, lawyers for the defendant argued that newspaper articles written in the course of public debate should fall under the fair comment exemption.
That argument was not accepted by Justice Mordecai Bromberg, because in his view Bolt had employed “mockery and inflammatory language”, a “derisive tone”, and “gratuitous asides”.
According to Justice Bromberg, Bolt had “failed to honour the values asserted by the RDA”. It’s the vibe, your honour.
Sections 18C and 18D have been on the books for 21 years. In all that time, precisely how many examples can those who champion section 18D as a great protector of free speech point to? Three.
The exemptions in section 18D have been applied in just three cases ever. Over that time a total of 65 section 18C cases have been argued before the Federal Circuit Court and the Federal Court.
You can’t pretend to believe in freedom of speech by defending section 18C because of the existence of section 18D, and be satisfied that it has “protected” speech in just three out of 65 cases that have come before the courts.
Section 18D doesn’t restore the egregious breach of freedom of speech contained in section 18C when a judge is able to rule that exemptions don’t apply because your tone is not acceptable.
The argument that state approved speech is the same as free speech is an authoritarian distortion of a bedrock human freedom. Section 18D doesn’t even protect free speech in practice. Let’s not hear of it again.
This article originally appeared in The Australian on the 14th of October, 2016.