“People do have the right to be bigots, you know.”

The public response to the above statement, made by Attorney General George Brandis three years ago in his proposition that Section 18C of Australia’s Racial Discrimination Act ought to be at the very least amended, reveals the contempt and misunderstanding with which a large majority of the public view the concept of free expression. To be fair, however, highlighting the right of people to act like bigots was never going to win over many converts nor push the concept of unbridling the shackles around free speech forward in a positive, progressive light. In this way, Brandis’ flawed sales and marketing strategy turned the issue not into a debate about the merits (or lack thereof) of the legislation but about empowering or disempowering bigotry, hatred and racism.

Thus, we find ourselves caught in a quagmire. For many proponents of 18C, the fact that the more prominent 18C opponents tend to be of a more conservative or libertarian persuasion makes any arguments for the repeal wrong ipso facto. More profoundly than this, however, is the view that the legislation represents a bulwark against loudmouthed bigots, racists, and xenophobes and is an essential protection against “hate speech.” On the other hand, the opponents of the legislation have, up to now, failed to rectify Brandis’ original sin. Instead of clarifying Brandis’ ill-expressed quip, in many cases it has mutated and compounded: there has been little to no progress made on the issue, and simply extolling the virtues of free speech in a seemingly “just because” fashion has no effect on a public with no prior experience or historical context of guaranteed free speech (Australia has no First Amendment or equivalent, after all). The position of the 18C opponents then very swiftly becomes the target of parody and is written off as, at best, the newest plaything of a bunch of jaded, pathetic contrarians or, at worst, the cause of the racist and the xenophobic elements among us — few though they may be. This perception is at the heart of the problem and it must be expunged.

18C makes it unlawful to offend, insult, humiliate or intimidate a person based on their race or perceived racial characteristics. Superficially — and in intent — it sounds like a perfectly altruistic goal typical of a fast-moving, progressing, liberal secular democracy in the 21st century. The veneer is shattered, however, when one considers the absurdity of codifying into law potential offenses predicated on what or how someone feels. As the Australian comedian Steve Hughes says:

 “How can you make it an offense to offend people? Offense is subjective. It has everything to do with you as an individual, or a collective, or a group, or a society, or a community, your moral conditioning, your religious beliefs; what offends me may not offend you. And you want to make laws about this? I’m offended when I see boy bands, for God’s sake!”

Suppose for a moment we were to discover tomorrow that a new piece of legislation had been passed titled The Hair Color Discrimination Act, promising to be a “vital” protection against offense and insult on the basis of one’s hair color. It’s telling that those who would tout 18C as an essential, reasonable law would probably laugh at the above prospect, and yet the factor of absurdity remains the same, regardless of which arbitrary personal characteristic may be substituted.

It is around this point that the supposed protections of Section 18D are always brought up:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

                     (a)  in the performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in making or publishing:

                      (i)  a fair and accurate report of any event or matter of public interest; or

                      (ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

For all of its supposed robustness and strength, 18D is rife with ambiguity. Who, for instance, is the ultimate judge as to what is or is not “reasonable” or “in good faith,” or what is or isn’t “an expression of genuine belief,” and by what right or power can they lay claim to this position? How is a genuine belief to be defined and who is the ultimate authority making this decision? Furthermore, if 18C exists to protect against offense, then why is “artistic expression” cordoned off as not applying under 18C? Surely a racial sleight would be far more hurtful to someone if expressed from beneath the cloak of “art” and therefore accessible to far more people — not to mention the insult and humiliation that would come with such a public exhibition?

Bill Leak

18D did very little for Bill Leak, the late political satirist who was very nearly prosecuted under 18C for daring to bring attention to the issue of Indigenous disadvantage without observing the usual liberal pieties and fatuous platitudes. It was also quite useless for Calum Thwaites, Alex Wood and Jackson Powell who, for writing a Facebook post about the irony of being asked to leave an empty Indigenous-only computer lab at the Queensland University of Technology in the name of equality, were dragged through the courts for nearly three years at a considerable personal and financial cost. That one may be compelled to front up to a judge, costing not only time but money as well, for merely expressing an opinion in a society that calls itself the beneficiary of Enlightenment values is beyond obscene; the repulsive, depressing result of one which gives aggrieved parties access to the levers of state power purely on the basis that their feelings have been hurt, insulted or offended in some way. As Mark Steyn has repeatedly stated, reflecting on his own elongated trial under Canada’s former 18C equivalent, “the process is the punishment.”

Attach all the exemptions and conditions you like: as soon as you put a “but,” or a “as long as” after free speech, it ceases to be free. There were several Bangladeshi free-thinkers and atheist bloggers who, had they not been hacked to death for the pathetic, imaginary crime of blasphemy, would have been only too eager to testify to this notion (I can hear their opponents now: “Of course they had free speech, but only if they’d stayed away from criticizing Islam. What did they expect?!”) 18C and other such laws do nothing but codify a secular concept of blasphemy. Mercifully, the death penalty for such “crimes” is still largely the domain of the most cynical, pessimistic dystopian fictions, yet the supporters and enforcers of such laws share a common goal with the totalitarian Islamist head-hackers; the only difference is that the former will use litigation while the latter tend to prefer machetes and Kalashnikovs.

What underpins the almost primal, reflexive aversion to unfettered freedom of expression not only in Australia but in an ever-increasing number of Western countries worldwide is a fundamental misunderstanding of what free speech actually is, and nowhere is this morally tenuous position more clearly expressed than in the now fashionable — but false — claim that “hate speech” is somehow separate from, and therefore not constituent of, free speech. This position is patently absurd to anyone who gives it more than a second’s thought. Ask a hundred different people to draw the line that supposedly separates these two concepts and you’ll get one hundred differently placed lines.

But suppose for a moment hate speech could be accurately and objectively defined: would that justify criminalizing it? It seems to me that what hate speech would consist of is one or both of the following: either the speaker’s message is being communicated in a hateful manner; or the speaker, through expressing himself, intends to encourage and incite his listeners to hate the object of the speaker’s scorn, whoever or whatever that may be. Further complicating the matter is the consideration of context. Expressing “hate speech” against, say, the deniers of and apologists for genocide would be a far more moral act than condoning and promoting pedophilia, cruelty to animals or female genital mutilation. If the mere presence of hate speech should qualify a statement unlawful and its speaker or author as befitting censure or penalty, the logical extension of this would be to also ban the holy books of most major religions, which contain droves of not only hate speech, but the most sickening and repulsive warrants for genocide, racism, misogyny, homophobia and even explicit instructions for the punishments to be meted out to women, homosexuals, non-believers and others deemed unworthy. Would those who support hate speech laws dare to come out in support of such a proposition? To ward off accusations of hypocrisy, they would be compelled to; that they most likely wouldn’t says more than any words ever could about the veracity and validity of their positions.

The freedom to speak is the freedom to think. They come as a package deal: if one is limited, curtailed or cordoned off in any way, then by definition the other is as well. As George Bernard Shaw put it, “all great truths begin as blasphemies.” 18C and other such laws, while admirable in their intent to minimize and gradually stamp out racism, bigotry, and xenophobia, are doomed to fail from the beginning. Insofar as 18C is concerned, its use of the entirely subjective test of offense or insult makes it not only silly but authoritarian and illiberal as well. For those whom social progress is a prime concern — and I would include myself in this group — hate speech laws tend to work against them, for the same laws that would protect your enemy’s right to free speech also protect yours, and everyone else’s. Not only that, but allowing those whom you hate the right to freely express themselves is the surest way of bolstering your own arsenal: it allows you to hear what and how your opponent thinks and the reasons behind their thoughts. A prohibition on hate speech doesn’t erase the issue; it simply buries it. In the same way that rolling a piece of dog shit in desiccated coconut doesn’t turn it into a lamington, prohibiting someone from expressing hateful ideas in hateful ways doesn’t equal social progress.

There has been no small amount of rhetorical venom injected into the discussion surrounding one of the most important issues a free society must grapple with. It’s high time to administer the antidote.

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