The state of free speech in Australia is in crisis

With the Senate voting down the Coalition’s proposed reforms to section 18C, the battle lines for free speech have now been drawn: on one side we have the free speech true believers, and on the other we have those who campaign for government control over what we can or can’t say. The Senate decision is a blow to all who campaigned to reverse the destructive and chilling effect 18C has on public discourse.

To make matters worse, shadow attorney-general Mark Dreyfus QC gave an indication that Labor would be open to consolidation of discrimination legislation such that offence laws like 18C would also cover sexual orientation, gender, age and disability should they win government. If this were to happen, any chance of a public debate on same-sex marriage would go out the window along with the freedom for religions to speak publicly about their beliefs. Labor MP Anne Aly went further with her suggestion that there is scope for religion to be included in any extension of the legislation, which would in essence be a form of blasphemy law.

Federation of Islamic Councils president Keysar Trad has come out in support of Dr Aly’s suggestion, which is no surprise; offence laws must seem very appealing when you are trying to quash public criticism of your preferred ideology. But other religious leaders have spoken out against the proposed inclusion of sexual orientation in future legislation for the obvious reason that they will no longer be able to publicly express their views on sexuality and same-sex marriage without the risk of censure.

This highlights one trouble with laws based on a subjective measurement of offence given: everybody wants in. Under an extended regime of offence laws, Christians and Muslims would risk censure for offending the LGBT community if they expressed anti-SSM views in public and the LGBT community would risk offending Christians and Muslims when talking back. Muslims, Christians and members of other faiths would probably do a very good job of offending each other. What a merry-go-round. The only winners here are lawyers and the bureaucrats at the AHRC. It might suit your purposes to support a law that is designed to silence your critics, but when it hampers your own ability to speak freely, what then?

18C and these proposed new laws which seek to make causing offence on the basis of religion, sexual orientation, age or disability unlawful, represent a contravention of Australia’s obligations under the International Convention on the Elimination of all Forms of Racial Discrimination which seek to ‘guarantee the right of everyone to equality before the law and equality in the enjoyment of the rights to freedom of thought, conscience and religion, freedom of opinion and expression’. It is very difficult to exercise your right to criticise religious belief or the concept of same-sex marriage without offending somebody whose opinions on these topics are held with deep conviction.

After spending hours on Facebook in the comments section debating free speech and 18C reform, I can categorically report that a general understanding of the principle of free speech is sorely lacking.

The idea that defending the right of a person to express a point of view does not equal an endorsement seems to be beyond the grasp of many. That is why, when presenting an argument to repeal or even reform 18C you are met with the accusation that you must be champing at the bit to commence racially abusing and marginalising ethnic minorities. Or, if you are white, you are told that you don’t know what it’s like to get abused or insulted. Even when non-white people express anti-18C sentiments they are accused of being ‘mouthpieces’ or ‘coconuts’ who can’t possibly know their own minds and don’t understand what is best for them. This is nothing short of racist abuse and hypocrisy of the highest order.

The claim that Australia is full of rabid racists hitherto held back by 18C, who would have been unleashed on the vulnerable the moment it was amended, only serves to highlight how this law, and the principle of free speech in general, is misunderstood.

Opponents of 18C reform know this and have exploited it, as did Bill Shorten and Anne Aly when they asked the Coalition the fatuous question: ‘what insult do they want people to be able to say that they cannot say now?’ They have very successfully managed to frame 18C debate in terms that categorise people as either racist bigots, or good people who give ethnic minorities a fair go. Seeing as most Australians fall into the latter category, and given the censorious tendencies of the social media mob, their job of disparaging 18C and free speech reform was only too easy.

Of course the answer to the question of ‘what is it you want to be able to say?’ is: ‘whatever we want’. We need to be able to discuss race-based policies, immigration and aboriginal disadvantage for example, without the fear that somebody, somewhere will be offended and without the need to justify to a government bureaucracy that our comments have been made in good faith.

These expressed opinions don’t have to include insults or abuse to potentially trigger an 18C complaint, far from it. As we have seen, the most innocuous comments can be construed as offensive given the right audience. We have managed to move forward over the last century in the arena of race relations, and equal rights for disadvantaged members of the community without the need for laws against causing offence to these groups, but alas we are now stuck with a bad law, and there is a very real threat that in the future, it will be expanded.

The state of free speech in Australia is in crisis. As Christopher Hitchens once said ‘The urge to shut out bad news or unwelcome opinions will always be a very strong one, which is why the battle to reaffirm freedom of speech needs to be refought in every generation’. And that is exactly what we have on our hands now: a battle. No matter how low the lovers of offence laws and the totalitarian censors of the outrage brigade go, free speech advocates must continue to make the case for the free market of ideas. Our very freedom depends on it.