The right to speak freely, or the need to be heard?

Recent debates in the public sphere over the intention to repeal Sections 18C and 18D of the Racial Discrimination Act are very telling about the current climate of political debate in Australia from both the perspective of how this discussion is framed as well as what falls outside the argument.

Section 18C renders speech unlawful if it intends to offend, insult, humiliate or intimidate someone on the basis of their racial or ethnic origin.

In arguing that "People do have a right to be bigots" and that they "have the right to say things that other people would find insulting, offensive or bigoted," Commonwealth Attorney-General Senator Brandis puts forward a notion of democracy in which all persons are seen to have equal capacity to debate important issues, and that there ought be no impediments to that capacity, including the possibility that speech might offend or insult.

Indeed, as the Institute of Public Affairs' Chris Berg argues, free speech implies that no ideas are sacrosanct and that the right to participate in public debate on matters of political importance should not be restricted.

The Right to Speak Freely?

Arguments that connect free speech with good democracy in this context are complex and often depend on drawing in extreme examples. Proponents of absolute freedom of speech regularly refer to totalitarian societies of the past and present, arguing for the need to speak freely for political change and the tendency of totalitarian states to prevent speech which opposes the 'legitimacy' of the regime.

On the other hand, arguments for the restriction of certain kinds of speech sometimes depend on rare examples of speech which bullies an individual so badly it results in injury or suicide-injurious speech.

Many free speech advocates and middle-ground perspectives will argue for the rightness of free speech, the wrongness of injurious speech, and the public sphere as the site at which those who oppose injurious speech should speak out against it. Chris Berg, for example, points to the example in which a young woman referred to AFL player Adam Goodes as an "Ape" (injuriously) and Goodes opposed the bigotry by arguing it in the public arena.

There are two elements ignored here. The first is the more obvious fact that legal restrictions on certain kinds of injurious speech may do little for 'democratic debate' but serve society better by providing a solid, clear argument that bigoted speech is wrong. It short-cuts the need for people to respond to injury by arguing back, and instead the law serves the function of making the anti-bigotry argument 'on behalf of the people'.

In a civilised communications environment, the right to speak freely (in what might be construed as bigotry) does not precede the responsibility to consider the vulnerability of others, including racially or ethnically marginalised groups and individuals. Rather, the onus is on the person speaking to seek, from the very beginning, ways of contributing to debate that do not offend, insult, humiliate or otherwise cause injury.

The Right to be Heard?

However, the second element that is absent in many of these debates is not about the rights or wrongs of the freedom speak either bigotry or defences against bigotry. Rather, what is missing is a series of questions on whether there is a right to be heard.