All Speech Is Created Equal But Some Speech Is More Equal Than Others

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If you think the right to free speech in Australia is equal, you’d be wrong. And if you think the people banging the free speech drum don’t know that, you’d still be wrong. Dominic Keenan explains.

In the past 18 months, there has been burgeoning debate surrounding free speech. It’s come in many forms – calls to reform 18C of the Racial Discrimination Act, same-sex marriage legislation, and an increasing culture of political correctness.

Throughout these discussions notions of free speech are often invoked to argue against progressive politics. The reasoning is always the same: “don’t stop me discriminating, that’s against my free speech”.

There are two major problems with this view, and the first is rather large.

Freedom of speech does not strictly exist in Australia – our right to free speech is a longstanding misconception. What we actually have is an “implied freedom of political communication” – a more nebulous concept that protects speech and acts surrounding political participation.

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This fact largely discredits any opposition by ‘free speech advocates’ to anti-discrimination legislation and progressive politics. If a comment or action falls within the scope of political participation, no law can restrict it. That would be unconstitutional and stuck down by the courts. Also susceptible to such restrictions are acts and speech intended primarily to hurt others, which don’t fall within the scope of legitimate political participation.

But even if we somehow manage to get over that hurdle, a second problem remains. Proponents of free speech are not talking about universal free speech, but their free speech. So should they be taken seriously? Are we okay with the promotion of free speech for some (an already privileged group) but not others?

A prime example of this problem are the offensive language laws found in each state and territory, which make it an offence to use “offensive language” in a public place.

In 2002, Lance Carr, a young Indigenous man, was arrested for saying “Fuck you, I didn’t fucken do it” to a police officer while being questioned for a crime he didn’t commit. This scenario is typical of offensive language charges.

Most commonly, offensive language offences occur during interactions with police who use the legislation to control uncooperative people. But these laws are not employed equally against all people.

Indigenous people are vastly over-represented in offensive language charges. In 1999, Indigenous Australians accounted for over 27% of those charged, despite making up just 3% of the population. In the Darling River Local Area Command, Indigenous women were 103 times more likely to be charged with offensive language than non-Indigenous women.

It’s easy to see how offensive language laws have varying impacts on free speech for different groups. These laws disproportionately restrict the free speech of Indigenous Australians and other vulnerable groups such as homeless people, who are more likely to interact with police.

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Where is the outrage at the infringements on their rights? Where are the champions of free speech now?

Offensive language laws present a much more significant affront to free speech than say, section 18C of the RDA. Prosecutions under 18C are rare, but in 2016 there were 3,741 offensive language charges in NSW alone. For a variety of reasons, these charges are rarely challenged in court, effectively allowing police to be the arbiters of guilt and moral standards. But there has been no real challenge to these laws from conservatives.

It’s an obvious problem when politicians argue for free speech only when it suits their agenda. The virtues of free speech – the free exchange of ideas, democratic governance, protest, dissent, and social progress – don’t exist where free speech is not universal. “All speech is free but some speech is freer than others” simply does not work.

Anyone arguing for free speech knows this – it is not enough that some of us have free speech.

In this light, politicians who invoke free speech to protect their own rights, but remain silent when it comes to the freedom of others, appear disingenuous at best.

Dominic Keenan

Dominic Keenan is a current Juris Doctor student and has previously studied a Bachelor of International and Global Studies. He is based in Sydney.

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