Free speech is under attack — and not in the way racists and bigots claim

Far-right protesters in Melton, Victoria in 2016. Photo: Wardenclyffe Photography

The right is increasingly using the issue of free speech to attack those who oppose racism and bigotry.

The ongoing debate over section 18C of the Racial Discrimination Act and the hate speech directed at the LGBTI community during the marriage equality postal survey have fuelled this debate.

But after SkyNews hosted the self-styled Nazi sympathiser Blair Cottrell, the debate has intensified to what some describe as “free speech absolutism”.

Katharine Gelber, a professor of politics at the University of Queensland, spoke to Pip Hinman from Green Left Weekly about the issues.

What have you noticed about the rise in complaints from those who purport to stand for free speech?

There has been a definite rise in the profile of “free speech” in Australian political debate in the last few years.

If you had to put a starting point on it, you could say the debate really took off after the Bolt case in 2011, in which the journalist Andrew Bolt was found to have engaged in unlawful vilification in some of his articles. Ridiculously, he claimed the decision “silenced” him, when actually it gave him tremendous media exposure.

Since then, the number of people claiming their right to free speech has grown exponentially, and it has been done primarily by people who understand free speech to mean that they have the right to say whatever they want, in any context and in any manner, with impunity.

This is, in my view, a very superficial view of freedom of speech because they do not understand or appreciate the effects of their speech on others, who also have a right to free speech.

How do you understand the concept of free speech?

I think free speech should mean that as many people as possible ought to be able to participate in the debate and deliberation that are essential to them being able to make meaningful decisions about how they want to live their lives, and to participate in decisions that affect them.

What this means is that free speech does not, and should not, mean that anyone can say anything they want at any time and in any context.

Free speech, like any right, carries with it commensurate responsibilities. And it is my view that free speech carries the responsibility to speak in ways that do not harm others, by preventing them from engaging in their own speech in political discourse.

So real free speech means making the environment conducive to allowing as many people as possible to participate in the deliberation that materially affects their lives.

That is why I support the robust protection of free speech, including speaking out when governments restrict free speech in overbroad ways and, at the same time, I support hate-speech laws, which are a modest way of encouraging people to take care with how they speak, to ensure that as many people as possible are able to participate in public discourse.

I think the current debate shows us that the people who are crying “free speech” the loudest do not understand this aspect of free speech at all. They take free speech to mean that they ought to be able to say whatever they want — including when they are very powerful speakers — and do so with impunity.

This is a superficial and inadequate understanding of free speech.

Some on the right argue that speaking is simply an expression of thinking, and that any attempt to curtail that amounts to thought policing. How do you respond?

To say that speech is merely the expression of one’s thinking is a real cop out. It’s also a misunderstanding of what speech does.

We do all kinds of things verbally: we marry people; we condemn people; we judge people; we praise people; and we persuade people. We do things with our words all the time and to suggest that we can only do nice things and not harmful things, like vilifying people, is simply untenable.

Hate speech derives its capacity to harm — as opposed to hurting someone’s feelings — when it’s said in a context such that the speech is a discursive act of discrimination.

We can see that hate speech against people of colour, for example, in a society in which racism exists can perpetuate that racism. In fact, it derives its power from the racist context in which it takes place.

We can see the same with anti-Semitism or sexually-based vilification, for two examples.

While it’s true that some white people can have things said to them that they might find very hurtful, those things do not constitute hate speech because white people do not suffer from systemic discrimination that the speech perpetuates.

What do you see as the main threats to freedom of speech today?

There has been a lot of debate in public about section 18C of the Racial Discrimination Act, Australia’s federal hate-speech law. Much of this debate is misinformed.

This is a civil law that operates through a complaints mechanism and is very modest in its effects. It operates in conjunction with section 18D, which has wide-ranging exemptions for fair reporting and public debate.

Contrary to those waging a campaign against it, section 18C is not applied to people who have had their feelings hurt. It has been made very clear in the Federal Court for well over a decade that for conduct to be actionable under section 18C, it has to amount to a significant public harm.

The focus on 18C, however, has meant other important laws that restrict free speech in broad ways are being overlooked.

These restrictions should concern us, because they have a wide-ranging impact on the freedom of speech that is essential to democratic deliberation.

Citizens need to be able to convey their opinions to government and engage in criticism of policy. Government needs to accept this criticism, even vehement criticism, as part and parcel of governing in a democracy.

So, for example, the federal government has tried twice to amend federal anti-vilification laws.

In the first attempt, in 2014, the Attorney-General released a draft bill that would have made the law virtually unenforceable by making the free-speech exceptions to it so broad that nothing would have been actionable. In the second attempt, in 2016-17, a bill to amend it again failed to change the text of section 18C.

There have been lots of other examples as well. Counterterrorism policy has involved the widespread restriction of free speech, even where there is little to no risk of the speech involved constituting a risk of harm.

For example, a tranche of legislative changes in 2014-15 included granting the Attorney-General the power to declare something a “special intelligence operation” (SIO), including retrospectively. Once this happened, it wouuld have become a crime for journalists even to report on it.

Only following a critical review by the Independent National Security Legislation Monitor in 2015, which concluded that the law created uncertainty for journalists, did the government amend the law to create a defence for publication of material already in the public eye, and to require that the disclosure endanger health or safety, or the conduct of an SIO. But the problem of retrospective application remains.

Another provision criminalised employees in intelligence organisations who copied, recorded, removed or disclosed information they obtained in the course of their work. While on the one hand, the need for confidentiality is understandable, the problem was that the law did not protect someone for disclosing illegal activities on the part of the government.

And we know from court cases in the United States and the Court of Justice of the European Union that widespread surveillance and data retention being undertaken by the US and Britain were held to be illegal after years of the governments claiming the opposite.

In asylum seeker policy, the government has tried to shut down criticism by preventing employees working in detention centres from speaking publicly about what they know. Following widespread criticism by doctors and the medical profession, health workers were removed from the provision by regulation, but it still applies to anyone else working there.

And it’s not only the federal government doing this. State governments have been trying to rein in the right to protest, with a law being passed in Tasmania in 2014 designed to stop people protesting, especially in logging or mining areas.

The draft law was considered so draconian that three United Nations human rights experts condemned it. It was first used against veteran activist Bob Brown, who successfully challenged it in the High Court.

But, in the meantime, New South Wales has passed a similar law, and so far it has refused to reconsider this law in light of the High Court’s decision in the Tasmanian case.

These kinds of overreaching laws restrict the kinds of speech that are vital to democratic accountability.