Free Speech and 18C: A Rationalist’s Perspective On A Way Forward

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With conservatives and libertarians leading yet another campaign to degrade racial discrimination protections, Dr Meredith Doig weighs in with an alternative.

Freedom of speech is back on the agenda in the new federal parliament, but in all the breathless hoo-ha about section 18C of the Racial Discrimination Act (RDA), what’s usually overlooked is 18D.

18C makes it unlawful to say something reasonably likely to ‘offend, insult, humiliate or intimidate’ someone because of their race. 18D contains exemptions intended to protect freedom of speech. Artistic works, scientific debate and fair comment on matters of public interest are all exempt from 18C, as long as they are said reasonably and in good faith.

Sections 18C and 18D were introduced in response to recommendations from the 1991 National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm and that even mild, low-level behaviour can soften the environment for more severe acts of harassment, intimidation and violence.

In applying 18C, the courts have consistently held that the conduct under question must involve ‘profound and serious’ effects, not ‘mere slights.’ Less than 3 per cent of racial hatred complaints ever make it to court.

The extensive and continuing debate about this issue is understandable, as it involves balancing two fundamental principles of a liberal, pluralistic democracy: liberty (and specifically, freedom of speech) and equality (specifically, social equality/non-discrimination).

The United States tends to favour the first of these two principles, with the Constitution’s First Amendment guaranteeing almost absolute freedom of speech.

In 1988 evangelist Jerry Falwell initially won a case claiming emotional distress caused by the magazine Hustler. Hustler had printed a fake advertisement that suggested Falwell lost his virginity to his mother in an outhouse. But the US Supreme Court reversed that judgement, ruling that the ‘free flow of ideas and opinions on matters of public interest and concern’ was of paramount importance.

France, on the other hand, prohibits public or private communication which is defamatory or insulting; for example it and many European countries outlaw Holocaust denial.

So have we got the balance right in Australia?

Opinion is divided. Free speech activists like the Institute of Public Affairs and libertarians like Senators David Leyonhjelm and Malcolm Roberts rail against the curbs: ‘Free speech is free speech … The only person who decides if I’m upset is me … Offence is always taken, not given.’

Liberal Democrats Senator David Leyonhjelm, during an August 2016 appearance on ABC's Insider's program.
Liberal Democrats Senator David Leyonhjelm, during an August 2016 appearance on ABC’s Insider’s program.

Fairfax journalist Mark Kenny argues neither of these “self-promoting misanthropes” would know what it’s like to experience discrimination, and rejects as ridiculous the idea that offence is all in the mind of the recipient.

The ancient Stoics would not have agreed with Kenny. They reflected extensively on how to deal with insults and offence; the Romans were very good at them.

Consider these: “All you do is run back and forth with a stupid expression, jittery as a rat in a roasting pot” (Petronius) and “You’re an informer and a mudraker, a con-man wheeler-dealer, a gigolo and an educator in evil. All that, Vicerra, and amazingly, you’re still broke!” (Martial) and “Everything you say is so unbearably boring, by Hercules, that it’s murder by monotony” (Plautus).

Advising on how to cope with such taunts, the great Stoic sage Epictetus wrote, “If someone responds to insult like a rock, what has the abuser gained with his invective?” In other words, it is up to the recipient of an insult to choose how to respond; remain unmoved and there is no gain to the insulter.

These days we tend to associate the word stoic with an unfeeling attitude – the proverbial stiff upper lip. But the ancient Stoics were not averse to feelings: they just divided them into useful ones and unhelpful ones. The anger that comes from experiencing an insult is unhelpful, and the Stoics had various ways to deal with it.

Firstly, they said, you might pause and consider whether the insulter may actually be right. If so, there’s no point in getting upset; learn from what they have said.

Secondly, if the insulter is behaving like a petulant child, consider that they deserve pity rather than anger.

Third, you might respond with humour. When Cato was advocating a case in court, an adversary named Lentulus spat in his face. Rather than getting angry, Cato wiped the spit and said, “I will swear to anyone, Lentulus, that people are wrong when they say you cannot use your mouth.”

Epictetus would have argued that protecting the disadvantaged from insults is counterproductive, leading them to believe they are powerless to deal with insults without the authorities interceding on their behalf. Better to teach the disadvantaged techniques of insult self-defence like the ones above.

But back to the present day. A possible solution to this intractable issue has been suggested by former Federal Court judge Ronald Sackville. In Anti-Semitism, Hate Speech and Part IIA of the Racial Discrimination Act, Sackville proposes two amendments that would achieve a more defensible balance between the legitimate protection of vulnerable groups from serious hate speech and the values of free speech.

The first would replace the words ‘offend, insult, humiliate or intimidate’ with the more demanding standard of ‘degrade, intimidate or incite hatred or contempt’. The second would assist courts in interpreting the legislation, replacing subjective criteria with objective tests: instead of judgements based on complainants’ subjective responses, the courts would use the objective test of how ‘a reasonable member of the community at large’ would respond to the behaviour in question.

Sensible suggestions from a rationalist’s point of view.

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Meredith Doig

Dr Meredith Doig is the lead candidate for the Senate in Victoria for the Australian Sex Party and President of the Rationalist Society of Australia. After a career as a corporate executive in manufacturing, mining and banking, she has spent the last 16 years as a professional company director on commercial, government, university and not-for-profit boards. She is a Fellow of the Australian Institute of Company Directors and taught governance in their core company directors course.

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