An update on freedom of speech
We are delighted to publish our first guest post from Professor James Allan on the day of FreedomWatch‘s relaunch. Professor Allan has written on the justifications for laws which restrict ‘offensive’ 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 [John Stuart] 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 And the facts as seen in the US (no hate speech laws at all) and in Canada (their national equivalent of 18C laws repealed over a year ago without a single noticeable bad effect) compare incredibly well to countries that have tried strong hate speech laws to foster integration (and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).
Read Professor Allan’s whole article here.
As a special offer, the first five IPA members who respond to this email will receive a complimentary copy of Professor Allan’s book Democracy in Decline.
The Parliamentary Joint Committee on Human Rights has this week found that South Australian Family First Senator Bob Day’s Racial Discrimination Amendment Bill 2014 does ‘not raise human rights concerns’. The bill would remove the words ‘offend’ and ‘insult’ from section 18C of the Racial Discrimination Act 1975.
As the IPA’s Simon Breheny said this week:
It is significant that the Parliamentary Joint Committee on Human Rights has made this decision in light of the fact that it is required to balance freedom of speech against discrimination law…
This clears the path for the Abbott government to support reform of section 18C of the Racial Discrimination Act.
The state of freedom of speech since November
Senator Day’s bill had the support of Liberal Party Senators Cory Bernardi (South Australia), Dean Smith (Western Australia) and Liberal Democratic Party Senator David Leyonhjelm (New South Wales).
The Institute of Public Affairs is working hard to encourage parliament to repeal legislation which abridges a person’s right to free speech and expression. Although Senator Day’s bill is not a full repeal of section 18C, the IPA supports the efforts of these Senators, as a step in the right direction. For more information on Senator Day’s bill, see this Factsheet.
The Charlie Hebdo attacks
In the most evil manner, freedom of speech has re-entered the current political debate. On January 7th, the offices of French satirical publication Charlie Hebdo came under attack from a pair of Islamic terrorists, in what the President of France called a ‘terrorist attack of the most extreme barbarity.’ In response to various editions which printed images of major Islamic figure Muhammed, the terrorists murdered 12 people, including six Charlie Hebdo employees, and injured a further 11.
In the aftermath, politicians across the spectrum claimed to support freedom of speech, proclaiming their solidarity with the publication by saying ‘je suis Charlie’.
At home, Prime Minister Tony Abbott struck the right note, saying “[f]reedom of expression is the cornerstone of a free society…” and later tweeting;
An unspeakable atrocity in Paris overnight. If you don't like something, you don't read it; you don't kill people you disagree with.
— Tony Abbott (@TonyAbbottMHR) January 7, 2015
This outpouring of support for free speech stood in stark contrast to the enthusiasm of most of the commonwealth parliament to repeal or amend section 18C. The IPA summed up this sentiment with the following graphic:
John Roskam, executive director at the IPA also had an article in the Australian Financial Review, which laid bare the hypocrisy of some:
Greens senator Richard Di Natale claimed ‘What is really disappointing here is that we are seeing crass opportunism from those people who support changes to the law that would allow individuals to vilify other people on the basis of race, and using a human tragedy to advance their argument.’ He’s wrong. What’s crass opportunism is Australian politicians talking about the importance of freedom of speech while at the same time supporting legislation which would have much of the material published in Charlie Hebdo declared unlawful.
Disturbingly, in the United Kingdom, Wiltshire Police have asked a newsagent for the names of people who purchased the commemorative Charlie Hebdo publications, supposedly for the cause of ‘community cohesion’. This was just weeks after the leader of the UK government, David Cameron, joined demonstrations in Paris in support of the same publication!
In Australia Senator Bernardi told The Guardian that the issue must be revisited in light of the attacks in Paris. Fellow South Australian Liberal Senator Sean Edwards joined him in calling for the repeal of section 18C, with a great article in Adelaide’s The Advertiser:
We can’t escape the fact Section 18C of the Racial Discrimination Act continues to unreasonably suppress completely reasonable speech.
Describing calls for its repeal with flippant talk of it enabling race-hate or the vilification of minorities is an insult to our liberal traditions at a time when we should be valuing those traditions more than ever.
They are the crux of what separates us from the cavemen of jihadism and they are the pillars of a society so many choose to leave their own in order to join.
Does section 18C apply to religion?
At the same time, shadow Attorney-General Mark Dreyfus and Race Discrimination Commissioner Tim Soutphommasane were insistent that section 18C would not have caught Charlie Hebdo. The reason for this, they claimed, was that section 18C speaks of ‘race’ and ‘ethnic origin’, and not religious origin. This is incorrect.
As Professor David Flint explains in The Spectator, this analysis did not factor into consideration two important matters. Firstly, the courts have given a very broad interpretation to the words ‘ethnic origin’.
Secondly, the explanatory memorandum to section 18C explicitly states that the provision is intended to apply to religion. It states the wording would provide for ‘the broadest basis for protection of peoples such as Sikhs, Jews and Muslims’.
Finally, the IPA’s Simon Breheny commented in The Australian:
Even if it wasn’t caught by section 18c, there is no doubt they would have fallen foul of restrictive state racial and religious vilification laws. This is one of the possible explanations as to why we don’t have any kind of publications in Australia quite like it, because our laws restricting freedom of speech are so severe.
It is unlikely that a publication such as Charlie Hebdo would survive in Australia. Laws which permit constant litigation and legal harassment are not appropriate in a liberal democracy. The survival of a media publication should survive or fail according to the vagaries of the market, as opposed to the censorious nature of an offended minority.
FreedomWatch urges the government to support Senator Day’s bill. The removal of the words ‘offend’ and ‘insult’ from the legislation would be a step, albeit only one step, on the path towards a more free Australia.