Loose Thinking about Free Speech
Megabytes have been devoted recently to ‘free speech’. Much has been self-serving. A lot of it has been driven by right-wing voices, in opposition to vilification laws and a proposal to strengthen the press complaints system. Left-wing voices have focused on gags on public servants and moves to deny grant monies being used to advocate for policy reform.
Balancing free expression with civility and equality is not simple. Conservatives accentuate the need for respectful debate and concern for reputation. Progressives fret about power and the need for marginalised voices to share stage with the well-resourced. Small ‘l’ liberals want to leave things to the marketplace and point to the internet as a liberating agent. These are all principled positions. Freed of posturing, most would agree we need to balance these principles.
At present, the debate is largely driven by self-described liberals. ‘Self-described’ because they tend, unfortunately, to have a mote in their eye. Else they are reacting to passing cases and old cultural battles, as much as any deep commitment to liberty.
Two causes celebres have animated the George Brandises (Attorney-General) and Tim Wilsons (his choice as Human Rights Commissioner) to declare themselves the living embodiments of JS Mill. One was the civil suit against Murdoch columnist Andrew Bolt, for vilifying prominent ‘light-skinned Indigenous’ figures. The Federal Court required Bolt to apologise, under the Racial Discrimination Act. In a volte face last week, the Prime Minister abandoned reform of that law. Not because the law was necessary to modulate aggressive racialism, but because he risked too much political capital to have it repealed.
The other cause that agitated free speech concern was the Gillard government’s interest in press regulation over self-regulation. After a public inquiry, and echoing UK proposals, Justice Finkelstein recommended a speedy conciliation process for complaints against newspapers, and the power to order apologies and corrections but not damages. In both the Bolt and Finkelstein debates, the Murdoch press led the opposition to regulation.
There is a principled ground for objecting to racial vilification laws. Where vilification falls short of personal intimidation such laws may martyr bigots. Suppression may breed more perversion. Press regulation was more pragmatic. We need a rational press complaints system, but it is hard to apply in the lightning-fast, decentralised era of internet news.
We should judge these new Millian liberals on what they do not say, and what they actually do, rather than just by what they say. Last year, in Monis’s case, the High Court upheld charges against two Muslim Australians. They had committed the offence of using the postal service in an ‘offensive’ manner, by sending spiteful letters to the families of servicemen killed in Afghanistan.
This was a criminal case, involving private communications. Spiteful behaviour, but also speech with a political point. The silence about Monis’s case was deafening, from Labor and Liberal politicians alike. Similar offences also apply at state level and to the internet. It would take a Stasi-like police force to enforce criminal laws for every ‘offensive’ communication via the internet.
The mote-in-the-eye goes beyond the problem of selective outrage about ‘free speech’. Besides its approach to government access to internet and mobile phone ‘metadata’, the Abbott government has sought to restrain the public speech of public servants and of community groups receiving Commonwealth funds. Rules now warn public servants against expressing even anonymous opinions on social media if they might be read as ‘harsh or extreme’ about government or opposition policy. Public servants with community roles, such as in an environmental group, are also warned against, say, criticising government policy on wind farms.
A dictate against NGO advocacy is now included in funding agreements. 140 community based legal centres, for example, will be banned from using any of their funding for law reform advocacy. This might be understandable were the government committed to better funding of services. But social problems cannot be addressed with only individual bandages. They often require a systemic push for reform. Even the High Court held, in a case involving the foreign aid organisation Aid/Watch, that charities could act as public advocates. Informed debate about the best way to advance public welfare was itself a worthy aim. Tax deductions, after all, are available to donors to political parties, and governments routinely run big advertising campaigns to push contentious polices.
Governments tend to see ideological enemies everywhere: in the public service, in NGOs and in the ABC. Compromising principles out of partisan concern is hardly a new phenomenon. The Queensland government recently legislated to tie unions in knots before they could mount ‘political’ campaigns. That law was repealed quietly, one evening in July, because the government feared it would be defeated in the High Court.
Unfortunately, many liberals have a stunted idea of freedom of speech, as merely a negative liberty. It is the freedom of magnates to run a political party or a multi-million dollar campaign against the mining tax. But what if you lack the resources for megaphone speech? Or you are one of the disaggregated voices of the unemployed or micro-business? To paraphrase Anatole France, in its majestic equality our law allows everybody, equally, to own a media chain or to risk arrest holding a placard at a demonstration.
Sadly, we live in an environment more partisan than principled. Opposition to racial vilification law is not based on its impact: there are few complaints, which are conciliated cheaply in private. It is based mostly on the symbolics: communitarians want to use the law to emblemise social progress, others resent certain migrant groups. Mr Wilson gave the game away when he falsely claimed that law was only open to ‘ethnic minorities’.
In the process, the dictum of another French writer, Voltaire, has been recast. Today, it is less a case of ‘I disagree with what you say, but will defend your right to say it’. And more ‘If I don’t agree with what you say, I will defend my right to be a hypocrite’.
Graeme Orr is a University of Queensland law professor and author of The Law of Politics
A version of this first appeared in Inside Story.