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

If, as advocates of absolute freedom of speech argue, and as the Attorney-General put it, "people do have a right to be bigots", then we need to ask if those who are injured by such bigotry always have equal capacity to contribute to public debates in the contemporary mediasphere. Andrew Bolt, for example, was charged under Section 18C of the Racial Discrimination Act for articles published in the Herald Sun in April and August 2009 that claimed fair-skinned Indigenous persons benefitted wrongly from claiming they were Indigenous. The speech was deemed to contravene Section 18C by being reasonably likely to offend, insult, humiliate or intimidate Indigenous persons, and it was right to prosecute, not only because it was speech that caused injury, but because the case helps set a standard in which it is deemed unacceptable to make il-informed and inadequately-researched statements about a group who remain marginalised.

Without legislative protections, the complainants in the case would otherwise have needed to engage in public sphere debate to point to the wrongness of the Bolt's speech. Access to a column in a newspaper and the capacity to write opinion pieces and Op-Eds is not granted equally and freely to all persons. Bolt is paid to write opinion, whereas opposing views may need to come from those who can only write in their spare time.

Rights, here, should not be about spurious claims to an equal right to 'speak back' but the right to be heard-in this case to have the case heard in a court.

The right to be heard is an important element too-often forgotten in discussions of free speech and in political discourse in contemporary Australia.

In the lead-up to the Commonwealth Treasurer's 2014 Budget speech, a number of (sometimes marginalised) groups in Australia have had good reason to express concern, fear and worry about proposed changes to funding, including the funding of tertiary students and universities. Although pre-budget explanations of changes have been vague, there are good reasons why certain groups might demand the right not to 'free speech' but the right to have their concerns listened to-by public commentators, journalists, policy-makers, government representatives and, perhaps most of all, cabinet ministers.

Education Minister Christopher Pyne's appearance on the 5 May edition of ABC's Q&A sparked an unprecedented vocal protest by students.

Student protesters were censured by host Tony Jones who described the tactic as undemocratic. While he did not explain how the action was, itself, undemocratic, it can be assumed he meant that by preventing Christopher Pyne from speaking and engaging with him through the question and answer format of the show, the protest failed to recognise the principles of debate that assume the equal capacity of all parties to speak.

News articles, Twitter, blogs, online forums and Facebook have been the sites of considered debate on handling of the student protest. Australian Liberal Students' Federation spokesperson Matthew Lesh bemoaned the willingness of activist students "to use disruptive and ferocious methods". Student protester Brigitte Garozzo stated on twitter that the outburst was driven by anger at Mr Pyne's proposed plans to deregulate universities: "Stop deregulating our universities and we wouldn't have to protest like this. YOU DONT LISTEN."

Ms Garozzo's short statement presents a very telling argument about free speech: certain kinds of speech (Mr Pyne's) have to be shut down because although he engages in debate, he does not listen-or pay a lip-service gesture of listening-to debate. Debate and discussion are absent in his contribution to public sphere debate. On the other hand, the protest is presented as a particular kind of speech that is allowable, again because a group of persons who will be affected by proposed deregulation of universities and possible hikes in HECS fees, are not being listened to. Here, protest is the only form that attracts attention to the extent that it contributes, albeit in only a small way, to the possibility of debate (well, enough to nearly shut down Q&A for the evening).

Governments listen-they listen to polls and they listen to majority votes. But that is only one form of listening, and it is usually a form that excludes the voices of the marginalised, minorities, the busy and the vulnerable. Regardless of whether or not the student protesters are individually vulnerable persons, in the face of proposed substantial and uncertain changes to education, students (as well as their lecturers, other university employees and their future employers) are made vulnerable.

And the ethical responsibility is for those concerned to be listened to. In many ways, the right, need and capacity to be heard should be at the core of the Section 18C/D repeal debates-forget the right to be a bigot and let us worry away at whether those who are not in the business of public speaking can get the chance to be heard.

Whether or not Australia has free speech and extends the right to speak (including to speak bigotry) is not the most important concern right now. Rather, it is the related issue as to whether or not there is a right to be listened to and the extent to which people need to go in order to be given the dignity of being heard.