Free speech and antisemitism

It might seem like a different world now, but a decade or so ago there was a big debate in Australia over freedom of speech. It was particularly focused on section 18C of the Commonwealth Racial Discrimination Act, which targeted (as it still does) acts that are “done because of the race, colour or national or ethnic origin” of another person or group and are “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” that person or group.

There were those, mostly but not entirely on the right, who argued that this provision, and especially the words “offend” and “insult”, was dangerously vague and therefore had a chilling effect on free speech. Others maintained that, given the various exceptions and safeguards in the Act and in the enforcement provisions of the Australian Human Rights Commission Act, there was no problem and those engaged in ordinary political debate had nothing to worry about. The debate was given additional heat but perhaps not light by the case of right-wing pundit Andrew Bolt, who in 2011 was found to have contravened section 18C.

Supporters of reform – of whom I was one – argued not that racial offence or insults were valuable in themselves, but that inviting litigation in the area posed unacceptable risks to legitimate expressions of opinion. For a time the issue attracted a lot of attention. The Abbott government promised to amend the section, but eventually abandoned the attempt after its draft was criticised on all sides.

And then all went quiet. So quiet, indeed, that when a free speech debate erupts again, in the shape of the report of the Albanese government’s special envoy on antisemitism, it’s no great surprise to discover that most of the participants have switched sides.

The Segal report recommends that in the name of combating antisemitism, under which heading it includes most criticism of Israel, the government should assume the power of supervising expression in schools, universities and public broadcasters. I don’t intend to labor the point that this would be a massive violation of freedom of speech; others have made the case more eloquently than I could. (See, for examples, Bernard Keane, Louise Chappell, Jonathan Holmes, Louise Adler and Robert Manne.)

What’s striking, though, is the absence from the debate of those who previously defended Andrew Bolt and attacked section 18C. The Liberal Party, and especially its hard right wing, has had nothing but praise for Segal, with its Victorian division going to the extent of proposing a system of police permits to control the content of rallies and demonstrations. Tim Wilson, once a human rights commissioner, has been vocal in condemning antisemitism but conspicuously silent on the question of free speech.

Even the Institute of Public Affairs, which led the campaign against 18C, has been missing in action. Prior to the release of the Segal report, senior fellow Adam Creighton reiterated the IPA’s position on free speech, noting to his credit that “conflict in the Middle East has highlighted a censorious streak among conservatives.” But since then, silence. At the very moment when the right’s concerns about free speech have been dramatically vindicated, they seem to be backing away from them at full speed.

And as usual, hypocrisy on one side is mirrored on the other. Few of the left-leaning commentators who have suddenly discovered the importance of free speech had much to say about it when it was Andrew Bolt being pursued (Holmes is an honorable exception). The pro-Israel lobby, however, can at least claim consistency: although on most issues it lines up with the hard right, it always supported the retention of section 18C.

In reality, the Segal report has precious little to do with racial or religious animus at all. It is part of a concerted political campaign to suppress criticism of Israel, in line with other moves worldwide – many of which have already had alarming success – to criminalise the expression of pro-Palestinian views. Just as Jon Stewart once closed a skit on the Arab Spring with the disclaimer “Offer not valid in West Bank or Gaza,” free speech hits a hard limit when it comes to the Palestinians and their supporters.

But the problem is broader than that. Like many other issues, how people line up on freedom of speech depends on which side happens to be caught up in it; freedom for the other side holds little appeal. Here’s how I put it back in 2015:

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.

If we take one lesson from the Segal fracas it should be this, that freedom is not just for those whose views are popular or fit neatly within the mainstream. Free speech must protect uncomfortable, unpopular, wrongheaded and prejudiced speech, or it protects nothing.