HUMAN RIGHTS by Augusto ZimmermannNews Weekly
Stifling free speech through 'hate speech' legislation
, August 30, 2014
On August 5, the Prime Minister, Mr Tony Abbott, dumped his promised repeal of controversial provisions in the Racial Discrimination Act 1975. By coincidence, the Australian Human Rights Commission two days later was scheduled to host a symposium in Sydney on free speech. The following article is from a paper presented at the symposium by Dr Augusto Zimmermann, a senior law lecturer at Murdoch University, Perth.
Other speakers included the federal Attorney-General, Senator George Brandis QC; the president of the AHRC, Professor Gillian Triggs; and a prominent constitutional lawyer from the University of New South Wales, Professor George Williams AO.
George Brandis QC
The history of freedom of speech can be traced back to the ancient Greeks, who believed that freedom of speech (parrhêsia) was a basic right of the citizen. Indeed, the Greeks believed “a slave could not speak his mind but a free person could”.
What made the trial of Socrates so notorious is that it “is the only case in which we can be certain that an Athenian was legally prosecuted, not for an overt act that directly harmed the public or some individual — such as treason, corruption or slander — but for alleged harm indirectly caused by the expression and teaching of ideas”.
Ever since then, free speech has been a recognised democratic right, and an essential pre-condition for the realisation of other rights of the individual.
It is a misconception therefore to assume that freedom of speech disadvantages minority groups and favours those with more power. First of all, it is important to remember that all totalitarian governments restrict speech as a matter of course, whereas freedom of speech has always been considered a central feature of every truly democratic society. Democracy naturally implies that both good and bad ideas ought to be allowed and, indeed, be encouraged to circulate in the marketplace of ideas.
On the other hand, it is very clear that the political elites who govern our societies might feel tempted to limit and restrict freedom of speech and of the media, if such a restriction serves their narrow or self-serving interests. Those self-serving interests might very well be “the retention and accumulation of power and the financial advantage it brings”.
As Australian Human Rights Commissioner Tim Wilson correctly remarked, “It makes a foolish assumption that free speech favours those with power. Anyone who has studied a skerrick of history knows that protecting free speech is about giving voice to the powerless against the majority and established interests.” Consequently, freedom of speech ought to be viewed as a mechanism against the concentration of power.
The federal government’s recent proposal — since abandoned — to amend the Commonwealth Racial Discrimination Act 1975 (RDA) sparked debate premised on the concern that the proposed reforms amounted to “a green light to racism”, and a “green light to bigotry in Australia”. The proposal would allegedly send “a dreadful message to the people of Australian that bigotry is okay”, “promote bigotry and hate”, and “risk emboldening racists”.
It is argued that the proposed reforms would represent a “watering down or perceived dilution of the RDA”, which“would send the wrong message to potential offenders that hate speech was becoming more acceptable in our society, opening the door to more abuse, and to potential victims that their right to live free from racial or religious vilification, abuse and intolerance was diminished”.
Everyone should have the right to criticise a religious idea, but one must acknowledge the enormous harm that racial vilification causes, both to individual victims and to the broader community. However, the amendment that the government proposed, then abandoned, cannot be taken to promote such behaviour, nor does it condone racism.
The question, therefore, is not whether Australians have the “right to be racists”, but rather whether they have the right to sue each other for racism, and where the legal bar should be set.
While the idea of inciting violence links the expression of thoughts to actions, the idea of hate speech links the expression of thoughts to no more than simply thoughts. This amounts to the fabrication of a new crime of opinion analogous to the crime that used to be committed by ‘enemies of the people’ in the former Soviet Union.
Similarly, hate speech laws allow the government to demarcate the things that citizens are allowed to say. It is one of the greatest ironies of the recent past that neo-Marxists and post-modernists have convinced the governments of Western democracies to abandon the liberal vision of freedom of speech, whereas the oppressed people of countries with official Marxist ideologies have never achieved any reasonable form of free speech.
The above fact underlines the importance of the debates prior to the draft of human-rights declarations and covenants in the United Nations, on whether there should be, when it comes to protection of freedom of expression, an exception for “incitement for violent” or, more broadly, an exception for “incitement to hatred” as the Soviet Union and its totalitarian bloc of communist nations maintained.
As Chris Berg, policy director of the Melbourne-based Institute of Public Affairs (IPA), points out, the drafting history of the protection of the freedom of expression in these declarations, “does not leave any doubt that the dominant force behind the attempt to adopt an obligation to resist freedom of speech under human rights law was the Soviet Union…”.
He adds: “When it came to draft the binding International Covenant on Civil and Political Rights, this was not the ascendant view. The Soviet Union proposed extending those restraints to ‘incitement to hatred’.… Suddenly, States were responsible for the elimination of intolerance and discrimination.”
The Australian drive to enact international hate-speech law took place when Labor Prime Minister Gough Whitlam was in power in the 1970s. Under his government, Australia became a signatory of the 1966 United Nations’ Covenant on Civil and Political Rights. The terms of that covenant were advocated by the then Immigration Minister, Al Grassby, in his first major statement on multiculturalism. When the Whitlam government adopted the principles of that convention by introducing the Racial Discrimination Act 1975, “he made explicit reference to its harmony with the government’s multiculturalism policy”.
Starting out in the late sixties and seventies, multiculturalism initially had the alleged goal of including minorities in Western societies. Nowadays, however, it is hard to talk so candidly about such an idea, since multiculturalism has become not just the fair understanding of different cultures, but also a radical anti-Western ideological project that is opposed to “Eurocentric concepts of democratic principles, culture, and identity”.
Instead of promoting the globalisation of liberal democracy and human rights, radical multiculturalists regard these values as ethnocentric products of Western history. In their place they propose a form of cultural pluralism that, although preserving a certain veneer of tolerance and respect for all cultures, stands as a form of moral relativism which refuses to admit that culture, at the extremes, may produce either a democratic society or social oppression.
The key words used in the RDA’s existing Section 18C, namely “offend, insult, humiliate”, are imprecise and largely subjective in nature. This undesirable outcome is aggravated by the fact that the present notion of “being offended” has become dangerously emotive.
According to American cultural commentator R. Albert Mohler, “desperate straits are no longer required in order for an individual or group to claim the emotional status of offendedness. All that is required is often the vaguest notion of emotional distaste at what another has said, done, proposed or presented”. Hence, Dr Mohler concludes: “Being offended does not necessarily involve any real harm but points instead to the fact that the mere presence of such an argument, image or symbol evokes an emotional response of offendedness.”
To make it worse under s18C, RDA judges are instructed to approach the conduct in question not by community standards but by the standards of the alleged victim group. Testing to the standard of the “reasonable victim” lowers an already minimal harm threshold, adding further imprecision and uncertainty and increasing the section’s potential chilling effect on speech.
Absolute free speech under all circumstances can never be a possibility. There are easily demonstrable exceptions whereby reasonable limits to speech may provide greater service to freedom than open discourse.
Within the boundaries of speech that should enjoy some protection, certain limited categories of speech have lower value, most notably sexually explicit speech that falls short of obscenity. Further, direct acts of violence and direct attacks on the physical integrity of another person should never be protected. Speech can also be controlled to some degree in time of national crisis such as in time of war.
If speech promoting subversion must be punished, then the danger has to be great enough and its occurrence proximately close. The test should require actual present danger that explicitly urges the commission of a particular crime.
It would be completely undemocratic, therefore, to argue that mere verbal insult should be punished as much as actual urgings of illegal violent action.
Above all, a true democracy requires that people must be strong enough to tolerate robust expressions of disagreement and personal opposition. As such, the government may even permit such things as a ban on some words on daytime radio, and regulate the location of sex shops and brothels, but it should not sustain any general prohibition of all forms of speech simply because they are thought to be offensive.
Nobody denies the harm of hate speech, but speech rights are most necessary for the weak, not the powerful. Conversely, the restriction of individual viewpoints is a serious infringement of democratic values, and the gains from hate speech laws are tenuous. Any possible benefit is outweighed by the chilling effects of such laws on democracy and freedom of speech.
Under democratic theory, one might say, as did Professor Kent Greenawalt of the University of Columbia’s law school in 1992, that “open discourse is conductive of discovering the truth than is government selection of what the public hears. Free statement of personal beliefs and feelings is an important aspect of individual autonomy”.
Augusto Zimmermann, LLB, LLM, PhD (Monash), teaches legal theory and constitutional law at Murdoch University, Western Australia. He is also a Commissioner with the Law Reform Commission of WA and president of the Western Australian Legal Theory Association (WALTA) and editor of The Western Australian Jurist. Last year he published a widely acclaimed book, Western Legal Theory: Theory, Concepts and Perspectives (Sydney: LexisNexis Butterworths, 2013).