Freedom of Speech is not Freedom to Abuse

Tacitus wrote that “it is found by experience that admirable laws and right precedents among the good have their origin in the misdeeds of others.” Law is typically written reactively. A law that addresses nothing is itself vacuous, for it has no purpose. Conversely, law itself is a crystalline and stubborn creation. Laws are often written in absolute terms. “Thou shalt not kill,” which on the surface may seem like an intuitive principle, is rather difficult to stomach given exceptional contexts like war or survival. This is why the court system exists – to interpret the intention of a law, to discern evidence, and to humanise the judicial process. It stands to reason that laws, although they may be written in absolute terms, are in practice somewhat more flexible and more readily express the values of a society than they do enforce them.

Section 18C of the Racial Discrimination Act (1975) is soon to be trialled in parliament by the Federal government. This law was passed under the Whitlam Government and amended under the Keating Government just eight years after indigenous Australians were granted the right to vote. It deems unlawful any public offense, insult, humiliation, or intimidation by one or more people against another person or group based on race, colour, nationality or ethnicity. Given the time, Tacitus’ description of law seems wholly adequate. No one could possibly doubt the importance of protecting the rights of indigenous Australians. Since then, these same laws have reinforced the conviction of Australian society to respect diversity and difference, to repudiate and penalise deliberate acts of racism intended to harm, and to work towards multicultural understanding and reconciliation.

Such law was timely, since it was at that time that tens of thousands of Vietnamese refugees came to Australia. The Racial Discrimination Act (RDA) is routinely identified as evidence of the Australian government’s rejection of racism and bigotry. Of course, the Abbott government takes a different perspective. Where once there was a need for such law, it appears that a rejection of racism is just common sense. Where once we had an inalienable right to speak freely, this law now seems to infringe on these rights. A law to be repealed is a vacuous law, for a vacuous law applied to nothing. The discursive conclusion of such logic would suggest that racism is no longer an issue in society. Never mind that the Cronulla Riots were less than a decade ago. Never mind that the party which seeks to alter Section 18C is predominantly white and male. Never mind that the only indigenous member in the House is intending to cross the floor in rejection of these measures. What’s important is that things are changing, and laws need to change with them.

Although this law isn’t being promoted on such an argument, probably because critics would find it too easy to point out that racism is not limited to the 20th century. Instead it’s all about the Freedom of Speech, which brings us to the phrase of contention. Two days ago (March 24) Attorney-General George Brandis spoke to the Senate, stating that people have the “right to be bigots.” This probably wasn’t the wisest choice of words, and certainly the media have used this phrase as a vehicle to protest these proposed changes. This is because Brandis revealed a lousy hand. In the logic of the neo-liberal mindset, freedom is sanctimonious. The freedom to commerce, freedom to associate, freedom from government interference, freedom from taxes is all imbued with infallible importance. This is the basis of democracy, don’t you know? Just ignore freedom from hunger, freedom to protest, freedom from abuse, freedom from discrimination. Absolute freedom in any society is impossible by definition. Society involves social interaction, and social interaction means that one person’s absolute freedom infringes upon another’s, because we invariably impact upon one another’s lives. This renders absolute freedom in any society an impossible ideal. What this suggests, unsurprisingly, is that the Liberal Party has placed a value judgement of one freedom over another – the Freedom of Speech over Freedom from Discrimination, yet retains the language of ‘freedom’ when explaining its perspective only.

This prompts us to consider: what is more important? That the law protects people from racial abuse, or that ‘bigots’ get their say? And that is not hyperbole or trivialization: the RDA only addresses bigots. Abbott and Brandis would have you think that they’re championing everyone’s freedom to speak. Hell, they might even justify it on the grounds of championing a bigot’s right to speak, but they’re not even defending that much. They’re championing the right of bigots to abuse others with bigoted language in a public place. That is the extent and demarcation of Section 18C. So seriously ask yourself: how important is it that we facilitate abuse in our legislation?

Everyone has a right to say anything. No-one can stop you. But once you’ve said it, that is where our friend John Stuart Mill comes in. He outlines a theory of liberalism that says that any freedom is justified as long as it doesn’t infringe on the freedom of others. This poses some rather paradoxical dilemmas when it comes to such things as pollution of the atmosphere, or commercial advertising. But no one would doubt that publicly humiliating, insulting, offending or intimidating someone based on their ethnicity or nationality is a horrid infringement of that person’s freedom from persecution and discrimination. In many ways this debate is too easy, which is why it is so confounding that these changes might just occur anyway.

Tony Abbott was adamant that no-one should be criminally charged for expressing a “political opinion.” But 18C does not literally refer to a “political opinion” in any simile, direct or abstract. It specifically refers to insult, offence, humiliation or intimidation, which demands that any prosecutor in a criminal trial must prove intent to insult, offend, humiliate or intimidate. That is a very high standard – a standard to which we won’t hold Andrew Bolt to. So it is perplexing that this is the issue the Abbott government has seized upon. Let’s see – climate change denial, tick; corporate tax breaks, tick; deforestation, tick; cuts to social services, tick; rejection of neo-Keynesian economics, tick; what have we forgotten old white men hate? That’s right!

Even Warren Mundine, the head of the PM’s own indigenous council, has called “the whole thing quite offensive.” I’m not a politician, but I suspect that when the body advising your indigenous policy suggests that what you’re doing about indigenous policy is offensive, you might want to either listen to or disband it. In the last two days, the media and opposition have raised queries asking the Abbott government about what these changes would mean in practical terms. Abbott himself could not speak to whether these changes would allow authorities to block content on websites denying the Holocaust.

The social contract is the very basis of democracy. Any social contract can go one of two ways: creating a hierarchical system of socio-economic and civic power that disenfranchises the vulnerable to the advantage of the elite, or by encouraging a pluralistic society to live in cohesion, which demands reconciling the privileges of the powerful with the rights of the marginalised. The latter has always been the ideological thrust of the left. To publicly condone the former would not win votes because no politically-conscious citizen would vote for such a discourse, and so movements in this direction have always adopted the language of economic freedom, freedom of speech or freedom to privacy. This issue is no different. This government needs to reconsider how helpful it is to protect a bigot’s freedom to abuse over a victim’s right to not be abused. And until the Liberal party does so, it will never lose its long-standing reputations as the party of privileged white men.

David Owen has a BA (Hons) in History and a major in Political Science from the University of Melbourne.

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