OK, let’s talk about free speech

A lot else is happening in the world, but a week after the event political discussion is still dominated by the murderous attack on Charlie Hebdo in Paris. And Australian pundits have found a compelling local angle in the shape of our own treatment of freedom of speech – specifically, the famous section 18C of the Commonwealth Racial Discrimination Act.

As readers will remember, last year the Abbott government proposed and then backed down from changes to the section that would have narrowed its reach and broadened the exemptions, although their precise effect (like much else in this debate) was uncertain. Public consultation revealed a broad lack of enthusiasm for the changes, and the government, facing other and more serious challenges, decided to cut its losses and drop the idea.

Of course, the whole point of a right such as freedom of speech is that it protects minorities and the unpopular, so public support for 18C was hardly a compelling argument against changing it. But the debate was complicated by the fact that the defenders of 18C also saw themselves as advocates of human rights and as champions of the oppressed. It was never a simple question of individual rights vs state power, but rather of competing interpretations of what individual rights required.

That duality has been displayed again this week in the conflicting views expressed by two different members of the Human Rights Commission: Tim Soutphommasane, who insists that 18C would not have limited the publication here of the Charlie Hebdo cartoons and represents no threat to freedom of speech, and Tim Wilson, who argues that it could and does.

As was the case last year, most of the big guns of pundit-land are on Soutphommasane’s side. But there’s a newly defensive tone to their argument, as if the events of last week have made some them uneasy. A particularly striking example came from Andrew Jakubowicz on Monday in the Conversation, whose intemperate language failed to hide the logical gap arising from simultaneously arguing that (a) 18C has no application to religion and (b) its repeal would encourage hatred against Muslims.

The main proponent of reform is again the Institute of Public Affairs (Wilson’s former employer), which called for “repealing existing Australian laws that restrict free speech, starting with section 18C” – failing to explain why, among the raft of restrictions on freedom of speech in Australia, this particular section should be singled out as the most serious.

The sad truth is that this has become a tribal issue. Those who dutifully mail off their cheques to the IPA are unlikely to have much interest in free speech in general; they defend Andrew Bolt because they agree with him, not because they think that even lies and hatred deserve protection. The human rights establishment, aligned with the left, sees Bolt and his supporters (more or less correctly) as enemies of human rights, and therefore concludes – wrongly, in my view – that their rights do not deserve protection in their turn.

Both sides have got hold of part of the story. The defenders of 18C are right to say that there are bigger threats to free speech around, and that the existing exemptions are broad enough to cover the likes of Charlie Hebdo. But they seem oblivious to the risks inherent in asking courts to adjudicate on the “reasonableness” or “good faith” of speech acts, as well as the chilling effect that even unsuccessful complaints can have on legitimate speech.

The opponents of 18C are right to point to those dangers. But their easy equation of a civil lawsuit with murder is reprehensible, and they are being disingenuous at best when they claim that there is no principled distinction between a Charlie Hebdo and an Andrew Bolt or an Alan Jones.

On the contrary, most democracies and many legal scholars distinguish between “hate speech” and speech that is merely offensive or insulting. I disagree with the policy of writing that distinction into law: I prefer the established first amendment jurisprudence from the United States that protects hate speech as well. But it doesn’t follow that the distinction itself is incoherent, or that those who promote it are arguing in bad faith.

For a good example, see the Human Rights Day oration given by Jim Spigelman, former chief justice of New South Wales, in 2012. Spigelman is eloquent against the dangers of outlawing offence, but he would modify 18C rather than scrap it. As he puts it, “Words such as ‘offend’ and ‘insult’, impinge on freedom of speech in a way that words such as ‘humiliate’, ‘denigrate,’ ‘intimidate’, ‘incite hostility’ or ‘hatred’ or ‘contempt’, do not.”

In other words, there is some potential for getting away from tribalism. The basis is there for at least some measure of left-right agreement on limiting the reach of 18C. But even under the pressure of last week’s events it seems most unlikely to happen: neither side actually wants the other as an ally. The right can’t bring itself to disown Bolt; the left can’t accept the bona fides of anyone who won’t take that first step.

And so the dialogue of the deaf continues.