“Be under no illusion, [freedom of speech] is under assault like never before in this country.”
It’s an alarming statement from Cory Bernardi and one that is dredging up some heated debate. He’s part of outspoken group of right-wing politicians and commentators outraged by Section 18C of the Racial Discrimination Act which they allege limits our free speech.
Is he right? On the surface, what’s so wrong about defending free speech? We as a society hold freedom of speech up as one of our greatest attributes, a cornerstone of our democracy. TV and movies have bashed into us the idea that it should be defended at all costs. So why are people attacking Cory Bernardi?
Well, it’s complicated.
We shouldn’t feel bad for wanting free speech. Freedom of speech is vitally important.
But where Cory Bernardi and his 18C bashing mates start to waver is by zoning in on the Racial Discrimination Act as an undisputed and horrific abuse of our freedom of speech.
It’s hypocritical, it’s lazy, it’s wrong and it’s infuriatingly oversimplified.
I’m not here to convince you that there aren’t faults with the law around discrimination and hate speech. Feel free to make up your own damn mind. What I am here to do is show you that it’s complicated. To show you that it can’t be summed up in a few patriotic tweets or a pointless so-called “debate” on Q&A.
So no matter what side of the debate you fall on, let’s cut through all the bullshit emotion and stick to a diet of facts.
So what the hell even is “Freedom of Speech”?
Hate to break it to you, but here in Australia, we don’t have guaranteed freedom of speech. We never really have.
The widespread belief that we do probably comes from lapping up decades of American culture. Just like their beloved guns, America has enshrined freedom of speech in their Constitution. But their bizarre obsession with guns should be a warning – just because they enshrine something in their Constitution doesn’t mean it is perfect.
Here, Freedom of speech isn’t enshrined in our Australian Constitution, although the High Court has held there is a “freedom of political communication” which protects people communicating about political matters. We did sign the International Covenant on Civil and Political Rights in 1980 which advocates for free speech but well, we don’t seem to give a shit about other international laws (such as indefinite detention and torture) so that doesn’t seem particularly important (and isn’t enforceable as Australian law).
But just because it isn’t enshrined in our Constitution doesn’t mean we shouldn’t care about it. Freedom of speech is critical for a functioning democracy. To hold our politicians to account, we need to be able to speak openly and without fear. Robust and lively debate should help create better policies. It’s also critical in our search for the truth. In theory, if ideas are equally and freely expressed, the truth will eventually prevail. Free speech is also important because we should have the basic right to make choices about the way we live – it’s critical for our sense of personal autonomy.
So Cory Bernardi is right. Right?
Not exactly. This right to a freedom of speech isn’t absolute. It isn’t a right to say whatever the hell you want without regard to the consequences. You can’t for example go ahead and blackmail someone. Clearly, there must be qualifications on this right to free speech.
Yet in recent weeks, Senators Leyonhjelm and Malcolm Roberts (that guy from One Nation) have both spruiked a pretty wide-ranging idea of free speech.
Leyonhjelm has said in relation to 18C that:
“Free speech is free speech, there is no qualification to it.”
Roberts on the other hand has said:
“Free speech is free speech; anything less than that is not free speech.”
Interesting theory. By those statements, we should just be able to say whatever we want whenever we want. Want to threaten to murder your neighbour? Go for it! Distribute some child porn? Why the hell not if in the name of free speech? Drop some state secrets? Sure!
These statements from Senators Leyonhjelm and Roberts expose their shallow (and hypocritical as you’ll see) understanding of freedom of speech. But it doesn’t change the question:
Should 18C limit free speech? Is that even the right question?
Welcome back to the land of Section 18C (and more importantly, Section 18D)
Every debate around freedom of speech and the Racial Discrimination Act specifically obsesses over part 18C of the Act.
Let’s get the facts straight.
Section 18C states that a person can’t do something that is “reasonably likely to offend, insult, humiliate or intimidate another person or group of people” and do it on the basis of another person’s “race, colour, national or ethnic origin”.
When read in isolation the law is expansive – if anyone could invoke the laws purely on the basis of being insulted, it would constrict much of the debate around race relations in the media, and swiftly lead to most of the right-wing media ending up in court cases.
Yet despite Cory Bernardi’s insistence that it’s destroying free speech, very few people have been found to have breached the law. People continue to spit out racist, vile commentary and cartoons every other day without heading to court.
So why is that?
Because unsurprisingly, right below section 18C is section 18D – which provides a very wide defence precisely to ensure that these laws don’t inhibit free speech.
Section 18D states that:
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.
If you’re bored to tears by legislation, here’s a brief summary: if you’re doing anything for artistic, academic or scientific purposes, you’re exempt from these laws. And according to 18D(c) you can say whatever you want in the media as long as it’s based on facts and is a genuinely held belief. The judge said this even extends to protecting opinions that most people would consider abhorrent. That’s very broad. The rationale? You can comment on anything you want, but you’ve got to provide the facts that led you to that decision so the audience can judge the comment themselves. It doesn’t stop anyone from weighing in on controversial issues – it stops people from offending and humiliating others with false allegations.
The notorious “Bolt case”
Which brings us to the most public case regarding 18C. Mention 18C and the next words will either be Andrew or Bolt. It’s a perfect example of how blatantly wrong the public has interpreted the law and its implications.
In September 2010, nine people sued Bolt and the Herald Sun over two of Bolt’s blog posts. In these posts, titled “It’s so hip to be black” and “White fellas in the black” he lashed out at prominent Aboriginal people such as Professor Larissa Behrendt, Bindi Cole, Geoff Clark and Leeanne Enoch by suggesting that they falsely “chose” to be Aboriginal to advance their careers and claim “special help” they aren’t entitled to. For example, he states that Larissa Behrendt ‘chose to be Aboriginal’ and now ‘demands law to give… [her] more rights as a white Aborigine than… [her] own white dad’ while Danie Mellor is a ‘white and cosseted’ man awarded an Aboriginal art prize even though the art ‘shows no real Aboriginal techniques or traditions’.
Classy stuff.
It’s pretty clear that this superficial, stereotypical assessment of Aboriginal heritage would insult a reasonable fair-skinned Aboriginal person. Therefore, it breached section 18C.
But this alone isn’t enough to make Bolt’s comments unlawful. Bolt also had to fail Section 18D which provides a defence of “fair comment” – you can say whatever you want (no matter how racist) as long as it’s based on facts.
This is where Bolt failed – miserably.
His columns were a mess of factual inaccuracies – some of them bordering on the bizarre.
Photo: Joe Armao, Sydney Morning Herald
He stated that Professor Behrendt looked “almost as German as her father” yet Behrendt easily proved she had zero German descendants on either side of her family – rather her father was a prominent Aboriginal in the community.
Similarly, Bolt suggested that the only thing that qualified Wayne and Graham Atkinsons’ as Aboriginal was the fact that their “Indian great-grandfather married a part-Aboriginal woman”. Not even close to being accurate. Both of their parents and all four of their grandparents are and were Aboriginal, as were all their grand-parents except for one Indian great-grandfather.
It doesn’t stop there, but I won’t bore you with every tedious inaccuracy riddled throughout his “blog”.
Of course, Bolt never brings this up when talking about why he was found to have broken the laws. Why would he? He doesn’t want to admit that it had nothing to do with his “freedom of speech” being encroached, it was because of his own terrible journalism. All he had to do was back up his claims with some true facts and he would have been fine.
It’s not just anyone who could be offended
While we’re at it, let’s destroy some other misconceptions. “Angry white male” Leyonhjelm loves to point out that “if you take offence, that’s your choice”.
He’s right. It’s up to you whether you get offended by something someone says. But the law doesn’t really give a shit if you’re personally offended.
Here’s how it works. The person who says they feel offended may bring the case to the Human Rights Commissioner but from that point on, your personal feelings are disregarded.
In reality, an objective test determines whether a “reasonable person” in the position of the person complaining would be offended, insulted or humiliated.
Objective not subjective.
It’s not up to you. The judge might take into account whether you were offended but ultimately it won’t change your case. The judge alone determines whether you had a right to be offended.
Boom. Facts.
Next please.
Unlawful vs criminal
Even if you were found to have broken these laws, you’re not going to be hauled in by the police and locked in prison. You cannot be prosecuted or convicted under these laws. It is a civil law, not a criminal one. If someone believes the law has been broken, they approach the Human Rights Commissioner who then brings the two parties together to talk through the issues and attempt to resolve it. In 2014, of the 192 complaints made regarding the laws, just 5 ended up in court.
These are barely ever used
In the two decades between 1990 and 2010, just 4000 formal complaints have been made, amounting to only 200 complaints a year. In comparison, police convict 12 000 people in NSW alone for using offensive language or conduct.
A Bunch Of Hypocrites
“Sometimes, in politics and life, there are things so important that they need to be defended under any circumstances. For lovers of freedom and jousters in the battle of ideas, one of those principles is freedom of speech.”
Fair point Cory, you greatly value your freedom of speech. So it makes sense that you would be up in arms at every attack on free speech, fuming at the very thought that people aren’t able to speak openly. Funny that, because I don’t remember seeing Cory Bernardi or Malcolm Roberts protesting in the streets when the Border Force Act made it possible for a doctor, welfare worker or an “entrusted person” to be imprisoned for 2 years if they speak out about abuses in detention – a blatant restriction of freedom of speech.
I don’t remember them appearing on national TV fuming about prosecuting people for verbally advocating terrorism, another clear violation of what they refer to as our “freedom of speech”.
It’s blatant hypocrisy.
If you want to have a conversation about real restrictions of freedom of speech, then let’s get bloody well started. Just this week, an Australian Senator has been barred from entering Nauru to report on our own detention centres. Our laws literally enable us to chuck people in jail if they speak out about the sexual abuse of children in detention. That sounds distinctly more like George Orwell’s 1984 than logical laws protecting our citizens against racial discrimination.
But by all means let’s get angry about our inability to racially abuse people on the street.
This campaign to change 18C isn’t really about the universal right to a freedom of speech. It has nothing to do with it. It’s about privileged people whinging that they are being silenced in society. This isn’t the case. For the first time, certain privileged people are being held to account by the people who are affected by their words. They complain about their own freedom of speech being limited by others calling them out for racism or homophobia, but this is exactly the freedom of speech we all deserve.
These laws are simply being used as ammunition in a fight against “political correctness”. It’s not a coincidence that these laws have been around for over 20 years and it’s only now that people are outraged by them.
You don’t need to convince me that freedom of speech is important. But literally all these laws do is stop people spewing racial abuse on the streets and stop media commentators from laying into people of other races without backing up their accusations with facts. Why the hell would you want to defend that? This isn’t a slippery slope. It’s a well-written law that is serving its purpose. If you want to have a civil discussion about race or criticise someone’s culture with facts, then go ahead – the law will protect you.
There’s nothing morally wrong with advocating for our right to free speech. But for fuck’s sake, if you’re going to hold it up as a universal right, at least have a bit of consistency. Maybe that way when you blatantly manipulate human rights for your political agenda it won’t show through so strongly.
I look forward to joining Cory Bernardi, Malcolm Roberts and David Leyonhjelm at the protest against Manus Island and Nauru this Saturday.
Next Time Someone Shouts “Freedom Of Speech”, Send Them This Factual Takedown Of Why They’re Probably Wrong appeared first on The Vocal.