The justifications for silencing offensive speech

EDITOR: FreedomWatch is delighted to present our first guest writer, Professor James Allan.

There are only three possible reasons for wanting to silence speech that offends, insults or humiliates others.

One reason aims to protect the target group, the people who hear it and are offended. Silence such talk and the target group does not get to find out what the speakers think of them. Members of this target group thereby gain a sense of security, but it is palpably an unreliable (or even false) sense of security.

On this justification the silencing of speakers is not hoping to change the speakers’ beliefs or attitudes.  Instead it is trying to cow them into silence and deliver the target group a false sense of security. Yet this ‘wilful blindness about the views of others is better than knowing the truth’ rationale for supporting section 18C is incredibly weak and unpersuasive. Virtually no one openly relies on this first reason.

A second reason moves the focus from the target group to the speakers themselves. The justification for speech inhibiting laws here is to improve the speakers. Silence them and you might, just, refashion them into people more in the mould of which you approve. This is the paternalist’s justification for s 18C type laws. And it is pathetically implausible and weak. If anything this rationale is even weaker than the first one above, which is saying a lot.

That leaves a third and final reason for supporting speech-restricting laws of the section 18C variety. Explicitly or implicitly, this is the home of almost all supporters of these type of restrictions. And here we do not focus on the target group, or on the speakers.  No, here we focus on all those who are listening to the speakers. Supporters of s 18C type laws value them because they are worried about how this sort of proscribed speech might otherwise affect listeners. It might convince them. It might change the views they held before hearing these words. It might alter opinions. The views being expressed might multiply.

This justification for s 18C style speech-restricting laws requires you to take a very dim and pessimistic view as to the capabilities of your fellow citizens. If the speech is absurd and implausible you nevertheless worry that the poor benighted fools who are your fellow citizens and voters might be persuaded. Sure, perhaps an elite group of academics or of top class Human Rights Commissioners might be trusted to hear and reject what you want rejected, but not mere plumbers and secretaries. They can’t be trusted to hear some categories of speech.

Of course this third justification for suppressing certain types of speech is incredibly patronising, as well as unbelievably pessimistic about one’s fellow citizens. And notice how few grounds there are for being pessimistic. 330 million Americans exist and rub along very well without any hate speech laws at all. Not any. Is the average American more trustworthy and better able to weigh and filter speech than the average Australian? Joe Plumber from Boston can see through Holocaust deniers but Suzy Secretary from Melbourne cannot?

That is precisely what supporters of s 18C are implicitly saying, and sometimes more explicitly, when they point to Weimar Germany. Frankly such pessimism is an insult to Australians.

On top of that this third reason for supporting s 18C type speech restrictions – ‘the fear of these ideas proliferating’ rationale for suppression – is too Finkelsteinesque in its dismissal of the famous John Stuart Mill defence of pretty wide open free speech. You see the thing is that none of us can be sure which set of ideas will stand the test of time. So throwing them into the cauldron of competing views where near on everything has to stand up to testing and enquiry has remarkably good long-term consequences. (And Mill was nothing if not a Benthamite consequentialist at the end of the day.) To deny this you have to see yourself as some sort of privileged and super-competent member of an elite, who can be trusted to weigh ideas while many others cannot.

Democracy is not compatible with such elitism. Plus Mill argued forcefully that such speech-suppression is wrong-headed. It is incredibly pessimistic about the abilities of one’s fellow citizens. And the facts as seen in the US (no hate speech laws at all) and in Canada (their national equivalent of 18C laws repealed over a year ago without a single noticeable bad effect) compare incredibly well to countries that have tried strong hate speech laws to foster integration (and that have not worked well, as in France, to put it as kindly as I can).

Put bluntly, there is no persuasive theoretical basis for our s 18C speech suppressing laws.  I also do not believe that there is a well-founded politics-based rationale for Prime Minister Abbott failing to move on emasculation of 18C, but that is a different article.

Professor Allan is the Garrick Professor of Law at the University of Queensland. He is the author of the book Democracy in Decline: Steps in the Wrong Direction, available here.

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