Understanding free speech: going beyond the 18c debate

Any gathering of liberal thinkers will tell you that free speech is a fundamental human right. Free speech, they say, follows on from freedom of thought. In saying that, most people accept some reasonable curtailment on freedom of speech for the protection of othersadversely affected by that speech. Much of the recent debate on the freedom of speech in Australia has focused on section 18C of the Racial Discrimination Act 1975 (‘RDA’). This article discusses recent elements of that debate and goes on to discuss how we might better understand the freedom of speech according to a holistic view of human rights.

Last Thursday, platitudes about free speech abounded at the Australian Human Rights Commission’s symposium, “Free Speech 2014”. Most speakers made concessions for reasonable curtailments – and a call from Fredrick Toben to reopen ‘Holocaust matters’ was promptly shut down, with the Institute of Public Affairs’ Chris Berg refusing to discuss the matter. Instead, Berg suggested that audience members instead read the ‘Toben cases’ in which he was ordered not to publish racially vilifying materials, and gaoled for breaching that court order. Despite references to reasonableness and the brief Toben-Berg exchange, there was little emphasis on identifying what is ‘reasonable’. Some, including the Australian Law Reform Commission head Prof Rosalind Croucher, identified that in Australia we do not have ‘freedom of speech’ as such, but rather a freedom to say that which is not otherwise contrary to law. This does not answer the question of what is reasonable either, as we must test such laws themselves according to the reasonableness standard. My argument here is that the reasonableness standard – and the freedom of speech itself – should be understood in terms of the promotion of human rights taken as a whole.

Section 18C of the RDA makes it unlawful to do an act which “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” in cases where “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”.Attorney-General George Brandis’ attempts to repeal section 18C and replace it with a much more limited provision were dumpedjust before the symposium.

There has been a palpable tension in recent months between Race Discrimination Commissioner Dr Tim Soutphommasane’s advocacy of section 18C and Human Rights Commissioner Tim Wilson’s arguments for its repeal. There were suggestions that Commissioner Soutphommasane was gagged by Attorney-General George Brandis at Senate Estimates hearings, and he did not appear at Free Speech 2014 – an event hosted by Commissioner Wilson. The two Commissioners spoke on Radio Nationala day earlier, where Commissioner Soutphommasane offered the following:

Freedom of speech has never been a freedom enjoyed in isolation from other freedoms, and the debate about section 18C has made very clear that Australians also value freedom from racial vilification. One thing that isn't emphasised in the debate about section 18C is that it is accompanied by section 18D, which provides a number of exemptions which serve to protect free speech. Anything that’s done in artistic work, academic debate or fair comment or fair reporting is exempt from 18C provided it's done reasonably and in good faith.

Conflicts in the application of various human rights are common. Many of the rights stipulated in the International Covenant on Economic, Social and Cultural Rights conflict with each other because of the costs and complexity of promoting each right. Rights to education and religious freedom are seen to conflict in discussions on what the content of education should be, such as whether homosexual safe sex practices should be taught. Most relevantly here, the 18C debate has been about how the right to freedom of thought and expression set out in article 19 of theInternational Covenant on Civil and Political Rights(ICCPR) may conflict with the right to freedom from discrimination in articles 2 and 26.

Australian canons of legal interpretation tell us that when two provisions of the same statute conflict, we should try to resolve them by reading them in the context of the document as a whole (R v Hickman; ex parte Fox (1945) 70 CLR 598). Following this principle in relation to the freedoms of speech and non-discrimination in the ICCPR present two options. On one hand, we could understand the meaning of freedom from discrimination as freedom from discrimination other than by speech or by speech acts. Alternatively, we could understand freedom of speech as not including the freedom to speech or speech acts that are discriminatory.

As is the case with many questions having two plausible answers, the best answer is likely a compromise between them. That is the purpose of section 18Dof the RDA, with exemptions from section 18C including debate in the public interest. At the heart of the Bolt case, which led to the renewed stir over the RDA, was that Bolt hadfailed to conduct a proper journalistic inquiryand that his arguments were factually incorrect and not made in good faith.

With the exception for arguments made in good faith in the public interest, freedom from discrimination should prevail over freedom of speech. This is provided in article 19 of the ICCPR itself, which provides that ‘the exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for respect of the rights or reputations of others’.

For someone to say that they are taking a rights-based approach often produces a vague result, with the conflict between rights remaining. I am using the term in a different context here to suggest that problems in freedom of speech should be resolved in terms of the promotion of rights. We ought to be free to say that which enhances rights, or has no effect on them, but the same freedom is not necessary to say things that violate rights. Under this approach, freedom of speech is not a stand-alone right, but a means of ensuring rights.

Our basic guide to determining what we should be free to say or do is what is known as the harm principle, most famously stated by John Stuart Mill in On Liberty. According to the harm principle, the state or society is not justified in regulating those actions that do not harm others by impeding their liberty. We ought to be free to do that which is not liable to cause harm. Striking the balance between the rights, liberties and interests of one person against another is the domain of law, by prohibiting actions – including speech – that do harm. Understanding the rights-based approach to freedom of speech still allows us to say that which is not contrary to law, maintaining the situation indicated by Professor Croucher, while maintaining that such laws are only just if they are aimed at preventing harm. This principle also allows us to distinguish between the freedom of thought, which is unrestricted, and the freedom of speech. We are free to think whatever we like, because it does not harm others. The argument that an act such as speech is a manifestation of a thought does not mean that freedom of thought requires the freedom of manifestation. The freedom to wish someone were dead does not create a right to kill them, in the same way that the freedom to think that another person is inferior and undeserving of human dignity ought not to justify that thought being publicly declared.

Freedom of speech as a facilitator of rights rather than a stand-alone right also allows us to seek recognition of our rights and our individuality in line with the theories of Hegel and Axel Honneth. By protecting and promoting one’s own rights and otherwise being free to say that which does not harm others, a person may participate in the private, civil and civic spheres equally with others. Achieving recognition, like the harm principle, cannot be done at the expense of the equal recognition of another. This grounds the freedom of speech in human dignity,allowing people to achieve dignity and recognition while not diminishing that of others. Provided that we afford others recognition by not discriminating against them, then we can seek full recognition in political debate, presenting our reasoned opinions and exercising our rights of political participation and self-determination in the political forum

In a mature and informed debate, the speakers realise that not all opinions are equal. Patrick Stokes, lecturer in philosophy at Deakin University, argues that people are not entitled to an opinion if what they mean is that they are ‘entitled to have [their] views treated as serious candidates for the truth’. An alternative expression would be that a person is entitled to hold an opinion, but not necessarily to have it heard. A speaker at a mathematics forum, or even a school teacher in a classroom, does not have an equal right with others to express the view that 1+1=3. Such an ‘opinion’ lacks the reason and basis in truth that would otherwise make it worthy of being heard in that context. In the same way, a person should not be allowed to express an opinion that is discriminatory and does not make a positive contribution to public discourse. This is most likely the reason that Chris Berg was so quick to dismiss Toben’s arguments at Free Speech 2014. On this view of freedom of speech as freedom of reasoned speech, people do not have a right to be bigots, or at least do not have a right to publicly engage in bigotry.

If we accept that human rights are based on the equal dignity of all people as human beings, then we require such freedom of speech as would allow us to protect that dignity. Professor Jeremy Waldron has argued that this emphasis on dignity is imperfect, but it is helpfulin resolving disputes. The argument I have presented here achieves this in three stages. First, we should be free to say that which is necessary to protect and promote our own freedom. Second, there is a reasonable restriction on the freedom of speech, so that we are not permitted to say that which denies or traduces the equal rights and recognition of others. Third is the residue, that we are free to say that which is not contrary to laws set out to provide the first two stages. Taking this rights-based approach allows us to understand that freedom of speech is fundamental in protecting our rights, without seeing it as being in constant conflicts with the rights of others.