(This is a piece I wrote in January 2015 in preparation for a submission to The Secular Party)
A Proposed Policy for Freedom of Speech
My intention is to explore:
- A rational philosophical approach to Freedom of Speech laws
- The current Freedom of Speech laws in Australia and Queensland
- Whether amendments are warranted; and
- What the likely effect of those amendments would be.
When it comes to laws regulating human conduct, my basic starting proposition is that as much as possible, people should be free to do whatever they like provided they are not harming other people.
Applying this to Freedom of Speech (FOS) laws, people should, as far as possible, be able to say whatever they like provided they are not harming others.
Some people say that FOS is so important that it should not be restricted in any way. All manner of famous quotes are often dredged up e.g. “I disapprove of what you say, but I will defend to the death your right to say it”.
But when pushed, nearly everyone will agree that some restrictions are needed e.g. Our current defamation laws are a restriction on FOS but they survive without protest. On the other hand our current hate speech laws are very contentious. The tricky part is trying to find that line. When to restrict and when to allow?
We can distil the relevant issues by looking at the current FOS laws. Before discussing S.18C let’s look at the less well known Queensland legislation.
Section 124A of the Anti-Discrimination Act 1991 (Qld) says:
124A Vilification on grounds of race, religion, sexuality or gender identity unlawful
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
The section goes on to provide some exceptions.
There are two concepts to consider. One is the “type of action” and the second is the “class of persons”.
The class of persons relies on the grounds of “race, religion, sexuality or gender identity”. Note that race, sexuality and gender identity are matters where the persons have no choice. Religion is different in that people choose to follow a religion.
The types of action covered by the section are “incite hatred towards, serious contempt for, or severe ridicule of”. I submit that the action of inciting hatred can easily be seen to lead to genuine harm by way of physical violence but to clarify this I would extend it to say “incite hatred or incite violence”. On the other hand, inciting serious contempt or inciting severe ridicule can lead to hurt feelings or embarrassment but fall short of causing genuine harm. Also, in the case of a group whose members are part of the group because of shared ideas (e.g. religious groups), it may be that these people are deserving of contempt and ridicule and should not be protected from it. It depends on the ideas. Are they contemptible or ridiculous ideas? ISIS is a religious group with contemptible ideas. It should not be unlawful to incite contempt for ISIS. The Mormon Church is based on ridiculous notions. It should not be unlawful to ridicule Mormon ideas and by association, Mormons.
What about black people or gay people? Should it be okay to ridicule them? The answer is no. There is nothing ridiculous or contemptible about being black or gay. But should it be unlawful to ridicule them? The answer is not so easy. I submit the answer again is no.
There are two reasons. The first is the argument that hurt feelings are a step short of genuine harm. Call a black man a nigger or a gay man a faggot and the victim should know that he is no less a man than before the insult. He can simply shrug his shoulders, ponder the bigotry of the accuser and move on. The statement is a reflection of the accuser not the victim. It is an unpleasant experience but we all suffer many of those. Secondly, as argued by Christopher Hitchens and others, it is important that we the listener are allowed to hear the accuser so that we can rightfully condemn them. If we deny the speaker the right to say it then we deny our right to hear their vile talk and judge them.
Let’s return for a moment to the types of groups that are protected. Having limited the types of actions the FOS laws should cover I propose we expand the class of victims who are covered. Would atheists be included on the grounds of “no religion”? I am not sure but they deserve protection as much as anyone so I would recommend extending the grounds to include “not following a religion” or words similar to that. But, let’s take this even further. Why try to list the likely groups? If someone is inciting violence against any group it should be unlawful. It should not matter whether the group is a bunch of Gays, Aborigines, Christians, Muslims, Atheists, boy scouts or real estate agents.
Taking all of this into account, I propose that S.124A be amended to reduce the class of actions to inciting hatred or violence and that the potential victims be extended to cover any person or group of persons.
Turning now to the Commonwealth legislation.
Section 18C of the Racial Discrimination Act 1975 says
RACIAL DISCRIMINATION ACT 1975 – SECT 18C
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
In this case the included actions are to “offend, insult, humiliate or intimidate”. Again, I would submit that none of these are genuinely harmful activities worthy of outlawing? Unlike the Queensland legislation I couldn’t say that some people deserve to be offended, insulted, humiliated or intimidated but there are some people who are easily offended and there are others who falsely claim to be offended or insulted as a means of shutting down a debate that they don’t like.
The problem with outlawing insults is that too many things can be interpreted as insults. Criticism, sarcasm, unfavourable comparison and merely stating a contrary point of view can be interpreted as insults.
When it comes to ideas, no-one is offended, insulted, humiliated or intimidated when you agree with them. These notions can only apply when you disagree with someone and as such they should not be unlawful. Typically these types of laws are relied on by religious fanatics who claim to be insulted or offended by actions or words which are contrary to their religion.
The only other type of insult I can think of is the black man or gay man insults referred to earlier and my same arguments apply in this case.
Note that the class of persons does not include religious groups.
Taking all of this into account there is nothing worth saving in S.18C and in the interests of consistency I propose S.18C be replaced with my amended version of S.124A.
The result would be a significant increase in our rights to freedom of speech.
Speech which incites serious contempt or severe ridicule would be allowed. Speech which offends, insults, humiliates or intimidates would now be allowed. Speech which incites hatred or violence would be unlawful.
The groups protected by the legislation would be extended to include everyone.
What would result from this? Off the top of my head, here are some consequences to consider:
- Under the current S.18C it would probably be unlawful to publish many parts of the Charlie Hebdo magazine. The current S.18C wouldn’t stop the Muslim insults (as religion is not currently covered by S.18C) but it would stop some of the racist cartoons that magazine publishes. The new legislation would allow this.
- Religious groups could rely on the new legislation for protection against instances where hatred or violence is incited. Think of the Cronulla riots of a few years back.
- Non-religious groups may previously have been protected but the new legislation would make it clear that they are so if a religious group incited hatred or violence against non-believers then that would be unlawful. Parts of the Qur’an may contravene the current law and may contravene the proposed new law.
- The recent S.18C case against Andrew Bolt would now fail.
Removing insults and offensive behaviour and the like will protect freedom of speech and make it safer to criticise religion.
Widening the class of victims benefits religions as they will now be protected in the Commonwealth legislation but it is a two edge sword as increasing the class of victims to non-believers means it will be very clear that those religions who incite violence against non-believers will be committing unlawful acts.
The Iron Fist