Are we the subjects of rulers anxious to protect their citizen’s ideas from being challenged, hovering overhead like a mother to her child on the first day of school? Do we all need to develop greater mental strength and meet criticism, and our critics, directly and without interference? Are we allowing good ideas to be repressed in exchange for the protection of uniform thought? Have we created a world in which one’s options for individual thought and expression are limited to this or that flavour of the same product?
The proposed repeal of Section 18C of the Racial Discrimination Act is based on such questions about the ideal extent of free speech. Although the principles underlying these questions have been hinted at, no detailed assessment of these principles, or opposing principles, has been attempted. Recent court judgments applying Section 18C allow an assessment of how these competing principles are balanced and whether change is needed.
Freedom of Speech in Australia
The Implied Constitutional Right and its Limits
The Australian Constitution contains no express right to freedom of speech. Instead the High Court of Australia has found that the right must be implied from the principles of democracy espoused by the Constitution. Judgments in the cases of Nationwide News Pty Ltd v Wills, Australian Capital Television Pty Ltd v Commonwealth, Theophanous v Herald and Weekly Times and Lange v Australian Broadcasting Corporation stepped out the basis for, and the limits to, the Australian right to freedom of speech.
For a democratic state to work all people represented by the governing body must be able to assert their will on the body’s policies and actions. Without the ability to freely assert an opinion, the subjects lose their ability to influence those that govern them. Most significantly, those people who hold points of view dissimilar to those who govern, or to the majority of people, lose their ability to participate in society. Brennan J said (at page 47) in Nationwide News Pty Ltd v Wills that:
“To sustain a representative democracy embodying the principles prescribed by the constitution, freedom of public discussion of political and economic matters is essential; it would be a parody of democracy to confer on people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments.”
In the Court’s view, the right is more shield than sword; it can be used to fight prosecution pursuant to a law that reduces free speech but cannot be pleaded as the basis of a claim against another.
The breadth of topics for discussion that are covered by the right go beyond speech related to an upcoming election. Instead:
“there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have…little or no connection with Commonwealth affairs.” (Mason CJ, Australian Capital Television Pty Ltd v Commonwealth, page 139)
On whether the right is amenable to restriction and, if so, when, the Court distinguished the Australian implied right and jurisprudence on the American First Amendment. The judges consistently found that public speech could be limited, so long as the restriction was in aid of a compelling competing interest (particularly the interest of preserving an “ordered society or for the vindication of the legitimate claims of individuals to live peacefully in such a society”, Deane & Toohy JJ, Nationwide News at page 77) and the limitation only restricted speech to the extent necessary to protect that interest.
Unlike the Unites States, where ample jurisprudence exists confirming that public speech is sacred and not to be limited, the Australian right is seen as important but limitable where a competing and equally valid interest may be trampled by an unquestioning commitment to speech.
Section 18 of the Racial Discrimination Act 1975
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
This section restricts all speech that may offend a person or a group of people because of their protected attributes. To ensure balance between the need to eliminate offence to people on one or more these basis with the need to allow democratic debate, Section 18D provides a number of exceptions:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
The exception for fair comment on a matter of public interest made reasonably and in good faith is important in the context of speech intended to persuade readers. It attempts to draw a line between speech which is merely hurtful to a person’s or a group of people’s self-identification, and speech which may be hurtful for those same reasons but retains its credibility as making a positive contribution to public debate. The balance sought correlates with the balance required by the High Court to ensure the constitutionality of the legislation.
The application of Section 18C
The bones of the legislation have been built upon by the common law, giving it substance and, by closer and closer approximations, attempting to deliver the outcomes the legislation aims to provide.
The judgment in the case of Eatock v Bolt provides a sound basis for examining how the Court has drawn the line between speech that infringes on Section 18C and that which is protected by Section 18D. It is a true test of whether the legislation walks the constitutional line successfully. Further, this case appears to be the first cause in effecting the current attempts to change the legislation to remove the protection afforded by Section 18C.
Andrew Bolt writes opinion pieces for an Australian newspaper. In 2009 he wrote two pieces which were the subject of a complaint under Section 18C. The articles alleged that a number of Australians with white skin but Aboriginal ancestry were part of a trend of people with similar characteristics who identified as Aboriginal instead of identifying with their, say, European background. It was alleged that they did this for the purpose of gaining either political or professional advantage. The complaint made was that the article insulted and demeaned white skinned Aboriginals, implying that there are not genuine Aboriginals.
In the Court’s judgement a number of important factors affecting the types of speech captured by the prohibition were discussed.
Harms covered by Section 18C
The first matter of importance was how significant an act must be to offend, insult, humiliate or intimidate; the importance lying in whether causing a minimal offence will be captured and therefore how careful the commentator must be in pitching their speech. Bromberg J found, relying on earlier authorities, that:
“…the section is concerned with consequences it regards as more serious than mere personal hurt, harm or fear. It seems to me that s18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society”. (paragraph 263)
and further that:
“the conduct caught by s18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights””. (paragraph 268).
This definition, requiring a minimum level of harm, ensures that only speech that causes an effect on a group or a person’s race or ethnic background to the extend that social cohesion is threatened will be scrutinised.
Bromberg J evaluated the articles written and found that the emotive language and general tenor of the articles were such that the message conveyed to the reader would have serious negative consequences on the treatment of the complainants and regard for white skinned people identifying as Aboriginal in public. As a result, Bolt was found to have caused offence at the level required to be sanctioned unless it fell within one of the exceptions.
Fair comment exception
The claim was defended, at least in part, on the basis that the articles were protected under Section 18D. They were argued as being comments made reasonably and in good faith and were fair comment on a matter of public interest. The defence argued that the divisive nature of the trend of people unscrupulously obtaining advantage as a result of their claimed Aboriginal identity, and the resultant devaluing of assistance provided to black-skinned Aboriginals in comparison, were issues of public interest.
When assessing whether the fair comment exception applied the Court said that this exception was the same as the fair comment defence to defamation proceedings. This step led the Court to assess the freedom of speech/freedom from offence balancing dilemma using prior authorities from defamation cases that had already grappled with the difficult task:
“The right to be free of offence gives way to the reasonable and good faith exercise of freedom of expression. The right to freedom of expression is limited to its reasonable and good faith exercise having regard to the right of others to be free of offence. The requirement of proportionality does not involve the subjugation of one right over the other and is consistent with achieving a balanced compromise between the two.” (paragraph 350).
Fair comment in defamation jurisprudence is particular in choosing what statements it covers and what it avoids. The defence does not require strict proof of accuracy and truth, the High Court having previously pronounced that the fair comment defence extended to those that reasonable people would consider abhorrent.
Speech gains protection only if it is genuine comment and can be recognised as such; it does not cover statements of fact or comments that appear to be made as if they are fact. To ensure that a comment is identified as such, the common law defence requires that the facts underpinning the comment are “expressly stated, referred to or notorious” (paragraph 355). Only then can the reader weigh the value of the comment against the facts presented, and not be led to believe the comment is factual in itself.
The safeguard built on this reasoning is that comment, when provided with the supporting facts, can be assessed as such by the reader against the stated facts. Any assertions made are clear to be just assertions which the reader can evaluate. It avoids the reader being convinced of an opinion as if it were fact itself. Drawing on the judgment of Bingham LJ in Brent Walker Group Plc v Time Out Ltd:
“The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule…that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated”. (paragraph 375).
Even where the facts stated are not found to be completely correct the defence can be applied, particularly so where the issue being addressed is of high importance. Where reasonable effort is made to obtain correct information and the article is written in a reasonable manner (for example, making concessions where a background fact couldn’t be verified or denied) and where offence to the person or people being criticised is done in a matter that minimises the harm to their reputation, the defence can still be used.
The decision on whether Bolt’s conduct met these criteria can be summarised in the following two paragraphs:
‘In my view, Mr Bolt was intent on arguing a case. He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out the facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people. Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the Newspaper Articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question”. (paragraph 405)
“The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles”. (paragraph 412).
Given the serious intimidatory effect and offensive nature of the articles, the failure to present the facts on which much of the opinion was based, the errors in the assertions made (which could have been uncovered easily or by contacting those mentioned in the article), and the unreasonable manner the people mentioned were depicted, the articles were deemed to not fall within the fair comment exception.
The push for repeal
Section 18C, 18D and related provisions have been slated for repeal and replacement by a new section proposed in the exposure draft titled Freedom of Speech (Repeal of S. 18C) Bill 2014.
If passed, the Act would reduce protection to racially motivated acts which vilify or intimidate. Unlike the current legislation the meaning of intimidate is limited to fear of physical harm to person or property and not intimidatory behaviour in the broader sense. There is no protection, such as in the current Act, from speech that is insulting or offensive.
A wide exception exists for any speech that is made “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”. Given the High Court’s previous wide definition of political discussion, it would seem that most public speech will be covered by this exception.
The tension between the rights to freedom of speech and freedom from offence has for long been a tug-of-war, each side having their own view on the most important values society should hold. The next section will investigate these justifications, drawing largely on writings from the United States where the tension between freedom of speech and ‘hate’ speech has played out in many court rooms.
The conflicting rationales
There would appear to be little doubt that constitutionally the Racial Discrimination Act is valid; although not tested by the High Court, the reasoning in Bolt appears in line with the reasoning in defamation cases such as Theophanous as to what speech repression is allowed.
But the Constitution would allow the repeal of the Section 18C protection. The choice must be made legislatively as to where we want the line to be drawn. Such a choice requires an examination of what is sought to be protected in both scenarios.
The case for unrestricted free speech
Historical events, such as religious dogmatism in the face of the scientific enlightenment, demonstrate in a vivid way the effects of the loss of the right to criticise the workings and organisation of society. The repression of minorities in favour of the majority and similar strict utilitarian societies in the past have the same effect of awakening the libertarian in us all. There are, from what I see, three main and interconnected reasons why some hold concerns about any restriction on the right of individuals to speak whatever they wish.
The pursuit for the discovery of truth
The story of Galileo Galilei discovering evidence and proposing a theory which bucked the earth-centered view of the universe prevalent at the time, and particularly the backlash against it by the then all-powerful Catholic Church in favour of maintaining earth-centric dogma, resonates with anyone who holds an opinion they believe to hold the truth. The fear of repressing an idea that may turn out to be correct ignites protest from the intellectual rebel.
This truth-seeking function of the First Amendment protection of speech leads the United States Supreme Court to consistently protect all speech that contributes to the ‘marketplace of ideas’. By allowing all public statements of ideas (save those that cause a “clear and present danger” of immediate physical harm to those receiving the statements), the public can then engage in debate and discover the truths of the world. Any attempt by authority to limit the content of a particular idea is expected to distort the final conclusion.
Robert Post cites part of the judgment in the case of Terminiello v Chicago 337 U.S 1, 4-5 (1949) on point:
“A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute…is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest…There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups”. (page 304, footnote 181)
Such thinking traces back through history to the struggles of overcoming government censors to promote new ideas. Cato’s letter No. 15, published in 1720 by Thomas Gordon that:
“Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech”.
The same phrase is quoted in Bromberg J’s judgment in Eatock v Bolt (paragraph 226) but attributed to Benjamin Franklin in 1752.
The free marketplace not only allows ideas to be communicated but also allows those ideas to be tested. In doing so, those ideas that withstand scrutiny will be all the more persuasive. John Stuart Mill’s essay On Liberty raises both issues of speech suppression:
“The greatest harm done is to those who are not heretics, and whose whole mental development is cramped, and their reason cowed, by the fear of heresy. Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral.” (page 94 of Utilitarianism, Liberty and Representative Government by J.S. Mill, published as part of the Everymans Library for J.M. Dent & Sons Ltd, 1948)
“If even the Newtonian philosophy were not permitted to be questioned, mankind could not feel as complete assurance of its truth as they now do. The beliefs which we have most warrant for have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded.” (pg 83)
The rejection of restraint to avoid dogmatic adherence to present ideas of how nature and society works or should work is a valid one. It is certainly the value that perpetuates scientific discovery. But further to advancing this ideal, it also flows into the following reasons for the need for restraint of speech to be minimal.
The ability for a community as a whole, and each individual in it, to arrive at their own conclusions on an idea are intertwined, at least in theory. How individuals view themselves and conduct themselves are the result of the principles and practices that are threaded through the community as a whole. How a community conducts itself is in turn, perhaps paradoxically, dictated by the principles and practices of all the individuals that make it up.
I don’t wish to labour only on the words of one man, but Mill’s statement of individuality has poignancy and brevity:
“It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it, and calling forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation; and as the works partake the character of those who do them, by the same process human life also becomes rich, diversified, and animating, furnishing more abundant aliment to high thoughts and elevating feelings, and strengthening the tie which binds every individual to the race, by making the race infinitely better worth belonging to”. (page 120-121)
Of course, Mill’s reference to ‘race’ was to the human race. The need for unfettered speech to allow people to determine their own conduct and the conduct of the community is a necessity. There is no role for government to play in the development of both save to ensure that government doesn’t encroach on the marketplace of ideas. Ideas need to be available for trade and all who wish to contribute to or receive wisdom from this market be free to do so. In discussing the tenor of American judgments on First Amendment application to hate speech, Massaro wrote that:
“The approach to hate speech that is most familiar to contemporary Americans is that urged by the civil liberties theorists. Their argument, which urges broad protection of offensive expression, hinges on faith and fear. The faith is in peoples’ capacity to withstand, reject, or fob off insults, or to engage in critical and effective counterexpression. The fear is of people’s tendency to define the category of offensive ideas too broadly and idiosyncratically, so as to suppress important criticisms of orthodoxy and to curtail revolutionary possibilities and individual creativity.” (page 222)
The effect of free expression and counterexpression is expected to result in the development of an agreement or common view on an issue. Enforcing restrictions on public speech in the name of what is ‘right’ is considered intolerable as,:
“Since no one can know in advance what is in the public interest (at least before the legislature votes), people must be free to speak their mind on any subject and advocate any position, no matter how ridiculous or wicked it may appear to others. Regulation of speech henceforth must be confined to issues of procedure – that is, where and when one may speak – to ensure that debate on the great issues of the day takes place in an orderly manner.” (Balkin – Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, page 294)
The ability to freely exchange ideas without fear or reprisal and the ability of people individually and collective to develop from that exchange leads to the final defence of the right: the preservation of democracy.
Preservation of democracy
The suppression of speech has been seen in history to result in the oppression of people; this still occurs in many countries. The ability to control dissent fails the test of what constitutes a democracy. Democracy requires the people to decide what is right and wrong, good and bad, and it is through the expression of ideas that the democratic society flourishes. It is this freedom in the marketplace of ideas that allows the attainment of the public self-determination, which in turn deems the society a democratic one. Richard Delgado cited an earlier argument by a Professor Emerson in Toward a General Theory of the First Amendment that:
“In a democracy, as Professor Emerson argued, all members of society must be permitted to voice their opinions so that the government’s authority is derived in fact “from the consent of the governed”.” (page 178)
The case for restriction of harmful speech
Racial speech causes a harm that must be protected against
In response to the libertarian argument that only speech that causes a clear and present danger of harm should the restricted, proponents of restriction argue that there is palpable harm caused to the individual and the group of people that hate speech is directed at. The alleged harm is to self-identity and self-worth, both in the individual and in the group.
As the basis for his proposal for a right of action in tort for racial insult, Delgado (above) listed some notable harms of racially motivated speech.
“The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted. Such language injures the dignity and self-regard of the person to whom it is addressed, communicating the message that distinctions of race are distinctions of merit, dignity, status and personhood. Not only does the listener learn and internalize the messages contained in racial insults, these messages color our society’s institutions and are transmitted to succeeding generations”. (page 135-136)
“Social scientists who have studied the affects of racism have found that speech that communicates low regard for an individual because of race tends to create in the victim those very traits of ‘inferiority’ that it ascribes to him.” (page 146)
Recognition of psychological illness and the effects of bullying on psychological stability has increased dramatically over the last few decades. Legislation and regulation has increased over the denigration of others, particularly in the workplace. The harm of words is no longer considered to be ‘mere slights’ where they have the potential to cause serious psychological harm and, on this basis, it is argued that such speech should be required to defer to the right to be free from harm.
Reduces equality between groups and therefore equality in speech
On the basis of the harm caused, debate about the application of the First Amendment has played out in the context of how it should be balanced against the rights contained in the Fourteenth Amendment and the right to equal treatment enunciated in Brown v Board of Education.
The argument from equality is grounded in the difference between procedural equality for all people and substantive equality between all people, somewhat in the vain of the Anatole France dig at the fairness of procedural equality that:
“In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread”.
Ensuring that no speech is denied can paradoxically result in speech being practically denied or relegated in its force and appreciation. This is particularly so where a person or minority group of people is maligned on a basis other than merit to the effect that an expression made by them, whether of an idea or rebuttal of an idea circulating in the marketplace, may be considered little more than stock of ‘junk’ status. Where the derogatory speech is allowed to continue it can seep into the general consciousness of the people and fester to the point of being indistinguishable as a mere opinion but take on the status of fact.
“Equality is not merely a matter of identical social and legal treatment of individuals, but it also must take into account inequalities in legal and social outcomes with the historical maldistribution of social goods and political power”. (Massaro, above, at page 241)
and following on from the lack of substantial equality, Balkin (above at page 397) describes the resultant effect on the debate of ideas:
“Although the form/content distinction allowed “dangerous” speech to be protected, this guarantee of liberty promised only a formal liberty of speech and only a formal equality of opportunity for its exercise. Yet as is often the case, guarantees of formal liberty and formal equality generally favor those groups in society that are already the most powerful. Guarantees of formal liberty and formal equality generally do not guarantee, and indeed may sometimes even thwart, substantive liberty and substantive equality.”
As with the argument that debate between equals enhances democracy, so it is argued that the silencing effects that a lack of substantive equality entails will result in the inability of the democratic body from determining itself in a manner representative of all people within it. Whilst it may appear that all are treated equally and, from a procedural perspective, they are, the minority are at an increased likelihood that malicious speech against them will not be easily fought with counterexpression. In his article Dignity and Speech: The Regulation of Hate Speech in a Democracy, Alexander Tsesis argues this line:
“Hate speech is a threatening form of communication that is contrary to democratic principles. It not only asserts personal opinion but also aims to prevent segments of the population from participating in deliberative decision making.” (page 501)
and finally and more generally that:
“The First Amendment is designed to allow for open debate, encompassing popular, controversial and unpopular points of view. In and of itself, speech is a neutral medium that can just as easily promote fascism as democracy, justify genocide as it does enjoyment of civil rights.” (page 512)
Racist speech does not add any meaningful ideas to the marketplace
“Racist and sexist speech is hard to defend…the civil libertarian cannot in his or her heart truly imagine that the speech of the Ku Klux Klan or the Nazis can have any redeeming social value. The libertarian is forced to defend racist and sexists on the pure market principle that the lack of any discernible redeeming value does not matter”. (Massaro (above), page 175)
Attack on unrestrained speech is also directed at the notion that there are no bad ideas and that the body politic must not weed out ideas that it considers bad. It is argued that lack of value in the idea expressed combined with the harm caused to the people subjected to the opinion and to the ideals of an equal society should result in restraint being applied.
The basis of the claim that there is no value in racist ideas appear to arise from the assumption that those who express an idea with hallmarks of racism do not seek to inform or convince the reader (Delgado, above, at page 177). Instead, the aim is to intimidate and exclude the identified groups from enjoying their political rights (Tsesis, above, page 504) and to allow such speech does nothing but preserve and reinforce the rights of racist speakers and the maligned status of the targeted (Tsesis, page 508). The harm to victims of hate speech is serious, and the value to society in allowing this speech is slight (Massaro, page 234).
This compounding of negative effects on people and on the marketplace of ideas entrenches the ideas as reality, distorting the possibility for finding truth:
“Stereotypic beliefs form the rationale for feelings of disdain and disparagement. When tied to prejudiced attitudes, stereotypes help create a number of behaviours ranging from avoidance to violence. Our review of stereotypes indicates that one’s perceived reality is not reality itself, but is a mixture of fact and fiction, if not total fiction. Yet when people act upon these stereotypes, the actions are carried out in the real world, not in their stereotypic world… The source of prejudice are varied. But regardless of how and why prejudices form, the fact remains that, like seeds, prejudice takes root, grows and blossoms into what may become violent hate.” (Tsesis, above, page 520, quoting Kleg, Hate Prejudice and Racism)
The combined effect of these complaints against unregulated free speech is that the expression of racist opinion contains no or very little inherent value as a truth-seeking expression, but does have the effect of injuring those it is directed at and appealing to prejudices held by others. These in turn can lead to those harmed by the initial speech to shy away from defending themselves or expressing their own opinion and, if they do, the opinion having less consequence due to a reduced value being place on that person’s opinion.
Where should the line be drawn?
There is an obvious tension between the two positions. One one hand, the fear of rejecting truths and of empowering a government over its people held by libertarians are valid, as is the need to promote equality of people in plural societies and avoid the harm caused by hate speech. As Post said at the end of his essay which ultimately defended the freedom of racist speech from repression:
“The strict implication of this essay, then, is not that racist speech ought not to be regulated in public discourse, but rather that those who advocate its regulation in ways incompatible with the value of deliberative self-governance carry the burden of moving us to a different and more attractive vision of democracy” (Post, above, page 326)
This challenge is fair enough given what is at stake. So, here goes.
Shrug off the insult and fight back
Given the ill-effects of racism on targeted groups and the likely flow-on effects to their participation and contribution to democracy, to argue that the ill-conceived racist expression is best dealt with by counter-expression is as equally ill-conceived as the racist expression itself. Countering racist opinion is unlikely to result in the minority of people who continue to cling to racist values changing their mind or result in some future unanimous societal consensus that racism is bad. Even if such was possible, the immediate harms caused to victims can only be seen as putting the right to express (not the right to hold) a perverse, antiquated and illogical opinion above the right not suffer injury at the hands of another.
The ‘clear and present danger’ exception used in the United States only protects people from immediate physical harm or the fear of such harm. This may accord with what was in the head of J.S. Mill when he said that the right should only be restricted where there it causes harm. But we are more understanding of mental harm; the damage it does to the person, to the people around them and to communities of people. I don’t think it unethical or a failure of logical argument to not cite scientific studies of this point, and instead point to the mounting public knowledge of mental illness and the harms of bullying and harassment of victims.
It is not a big leap from balancing freedom of speech against physical harm to balancing that right against the recognised psychological harm of insulting and degrading speech. The argument could be made that one piece of writing or one piece of speech that insults a person or group is not enough to cause a serious harm. But this understates both the effects of the insult on the victim and the effect of the words on how the victim is viewed and treated by others. Where the insult draws upon deep-seated distrust or prejudice, installed through the historical differentiation of people, there is good reason to believe that the insult will cause immediate harm or will awaken the feelings appealed to in others and result in ill-treatment of the targeted people.
The inherent value argument
I cannot accept the assertion that hate speech has value in the marketplace of ideas or that excluding racist speech could result in us rejecting a sound idea. Through roughly two-and-a-half thousand years of the development of logic and reason, from its birth in Ancient Greece to its domination of scientific discovery today, humans have learned to think critically. We are able separate out ideas that hold some value as an idea ripe for testing and debate from those ideas which are internally devoid of the possibility of having any merit.
Racist speech, at least most forms I can recall and imagine, is rarely if ever any more than an attempt to paint a picture of the group targeted that suits the writer’s argument, and then disparage that picture to gain support from the reader. To the logician this is something like a ‘straw man’ argument. By the writer building his or her own picture of the target, any facts about the target that, if included in the description would negatively affect the opinion being made, can be left out.
The straw man can be as simple and identifiable as the use of the word “Nigger” in a manner apt to reinvigorate the ideas of African-American inferiority, or “Jew” in a manner evoking historical mistrust and mistreatment of those people. Or it can be used to make out an argument that the writer wants to appear as being an opinion based on verifiable facts and made in the public interest, but does little more than spread untruths about the targeted group among his or her readers. In both cases, the straw man painted is an attempt set up the issue to be discussed in such a way that, once the truth of those asserted facts is accepted by the reader, the opinion derived from those facts must also be accepted.
Given such opinions have no true factual basis, the opinions themselves hold no weight as an idea. For an idea to have any prospect of influencing the public, the body politic or an individual in their private lives, the idea must (or at least should) be logically sound. An idea based on false facts is as susceptible to collapse as a building constructed on shifting sand.
If we look at speech based on racist opinions as being, significantly more likely than not, devoid of logical premises, we see that we are not at risk of rejecting good ideas. Instead of weeding out illogical ideas promoting inequality, we would be more apt to concentrate and debate ideas that are more likely to hold some important truth.
There is the possibility, however minimal it is, that an opinion that appears to be racist has some value. This would be particularly so if, as discussed by Bromberg J in the Bolt case, the factual basis of the opinion has some truth. If a blanket ban on any speech which may offend or insult a person or group was enforced, a diamond idea in the rough of its context may be lost.
I admit that it is hard of think of an example to expand upon this point. But lets say that a study showed that a particular group of people, identified by their culture, had a higher incidence of sexually transmitted disease, and the purpose of the study was to give an opinion about action that could be taken. This article may be read by some of the subject group as offensive, implying something derogatory about their sexual conduct. But if the data is tested and appears to be well founded, or at least is sought out with reasonable pursuit for accuracy, the opinions drawn from the data are appropriate and do not imply some fact in the data which is not present, and is written in a manner that focuses on the problem and not an expression of opinion against the group, the opinion should be allowed.
The history of ill-effects of inequality on people leaves little doubt that racist opinions have as much value as an argument that the earth is flat and supported on the back of a turtle. The litany of evidence of the ill-effects of racism on the individual people targeted, the groups insulted and on society in general must lead to the conclusion that an opinion contrary to this evidence must be supported by some very strong evidence. I like the words of the late Carl Sagan:
“Extraordinary claims require extraordinary evidence.” (Carl Sagan, Cosmos)
If the approach to ideas and opinions based on racist values was treated as so unlikely to hold value as historical evidence dictates it will, the libertarian protection of all ideas as having value in themselves must fall away, and rational testing of ideas must result.
The fear of complaint and freezing opinion
The argument that the possibility of being complained against causes people to self-censor must also be addressed. It is reasonable to hypothesise that the fear of being forced to pay to defend what turns out to be a protected opinion will cause some good ideas to not be publicised at all. But this, I fear, is due to the problems of the legal system itself and the cost of access to it, not of the regulation itself
This problem is already being addressed. Complaints made under the Racial Discrimination Act are made to the Australian Human Rights Commission which aims to conciliate and resolve the complaint. Lawyers need not apply. Only when the complaint is not resolved can the complainant issue proceedings. This possibility, not wanting to withdraw his or her work on the basis of an unfounded complaint unresolved at conciliation, may be of concern. But a commission or tribunal with the power to resolve disputes in a no legal costs setting, similar to some lists in the Victorian Civil and Administrative Tribunal, would reduce this problem.
It must also be noted that compensation isn’t necessarily the aim of the game for complainants. The result of the Bolt case was a retraction of the articles penned and an apology. For many complainants this cathartic act of justice will be enough.
Limiting a complainant’s prayer for relief to such corrections could be considered undervaluing the actual damage done to the targeted people, so changes to the right to compensation would need to proceed with caution. A lack of compensation is equally prone to attack on the premise that it may be financially beneficial for a publisher to attract attention through racist remarks and apologise later where there is no risk of paying damages to those affected. But the sight of the same writer or the same publication having to print full-page retractions and apologies at the same rate that it publishes the articles must have some effect on the hip pocket of those who profit, and on the reputation of the bigots who write the articles.
If we manage to correct the problems with the cost of the legal system, the concern about freezing opinions for financial fear will be largely resolved.
Have faith in the intelligence of all people; to protect is to insult
Libertarians argue that we should not put faith in the government and the legal system to decide right from wrong, and instead they appeal to flattery; people are intelligent and will be able to see through opinions lacking in logic. This appeal must resonate with everyone – no one considers themselves a fool or easily conned.
In an ideal world, this appeal would have significant merit. If all readers were educated to a high level, trained in critical thinking, able to distinguish assertion of fact from assertion of opinion and able to entertain an idea without accepting it; and if all writers were accurate and truthful in setting out the facts they base their opinion on, draw only rational conclusions from the facts and tread carefully where unfair caricatures and insinuations are possible, then racist and other forms of speech would die a natural death.
This may occur in an Utopian society. Given the glaring deficiencies in our society this argument is a straw man in itself; if you accept the initial premise, the conclusion that follows appears valid. But the initial premise is a con.
I am not averse to trying to depict what a Utopian society would look like, however unattainable it may seem. In such a world there is unlikely to be a need for restriction as all writers would see the futility and waste that illogical arguments, appealing to differentiation of people on the basis of some differences in DNA base-pairing, would be. There is no reason to believe we can’t eventually reach such a place in time, but it is not now. We need to strive for substantive equality before bare procedural equality will attain the same outcome.
Richard Rorty, quoted by Massaro in his conclusion on page 265, talks about the preconditions for ultimate freedom of speech:
“‘Free discussion’ here does not mean ‘free from ideology,’ but simply the sort which goes on when the press, the judiciary, the elections and the universities are free, social mobility is frequent and rapid, literacy is universal, higher education is common, and peace and wealth have made possible the leisure necessary to listen to lots of different people and think about what they say”.
If we ever meet such an ideal of social organisation and cohesion, then government interference would barely be necessary. Until then, legislation must enhance equality and do so by holding public social commentators to higher standards of logic and care.
I do not accept the reasons why American style ambivalence to racism should be tolerated in light of the injury it causes and the lack of possible positive effect it could have. The Constitution allows its regulation within reason and we should do so.
If the thought process of Bromberg J in Eatock v Bolt is the process that all Section 18C cases are decided upon then it is difficult to rationalise the proposition that the section results in the right to freedom from offence being given to much weight compared to the right to freedom of speech. His Honour’s reasoning draws parallels to assessing inflammatory pieces on the logic of their arguments and their efforts to preserve dignity when the opinion strays in to areas that may cause serious harm. But, this is to be expected. The development through the Common Law of the fair comment defence in defamation proceedings has long sought to find the right balance between allowing expression of ideas and restraining harm.
The pitfalls with the costs of the legal system and its possible effect on speech are of some concern, but the initial complaint process under the Act has the effect of eliminating costs when a complaint is initially made. What needs to follow is the ability for a binding decision, using the deliberation process of Bromberg J, to resolve disputes that don’t resolve at the Human Rights Commission in a cheap but effective way.
The procurement of egalitarian values of equality must be assisted. If we should reach an age where equality truly exists then the libertarian argument for procedural equality only will be valid once more. Hopefully we can one day meet that objective.