Free speech: the path to true equality

This May, at the Sydney Writers’ Festival, I was lucky enough to be asked to take part in one of the ‘Coffee and Papers’ sessions. Designed for the festival early birds, the purpose of these gatherings was to bring together local journalists with one of the SWF’s invited authors, whose work, it was hoped, would throw fresh light on some of the stories in the news that day. Since my own work was on the subject of offence, and since Winkgate had just exploded into the news cycle (complete with analysis and slow-motion replays), I was confident we’d have plenty to talk about, even if my ability to talk about it at 9:30am was open to question.

In the end, however, it was an older story – the Attorney General’s cack-handed attempts to reform the Racial Discrimination Act – that provided the meat for the panel’s discussion. The issue was handily summarised by the Sydney Morning Herald’s Sherrill Nixon, who put it in the form of a question: Do people have the right to be bigots? I responded that I thought they did and that George Brandis’s statement to that effect was not just an innocuous one – after all, he was not recommending bigotry – but had itself become the occasion for, and focus of, an ‘offence moment’ in which issues of substance had been pushed to one side in the interests of ostentatious indignation; the reaction to it, in other words, was indicative of the great steam-bath of censoriousness in which our democracy now finds itself.

Needless to say, not everyone agreed, and when the time came for questions at the end of the session, one man disagreed vociferously. In his view, I had given the ‘green light’ to bigots of the kind that tormented him and his (Greek) family when he was growing up in Sydney. He told the story of how a man had approached him and told him to ‘fuck off back to where you came from’. He had never forgotten it, and from the passion in his voice it was clear that the wound it had inflicted was still raw.

Emotional as they were, however, his comments were also a neat distillation of an argument that is often made on the left when it comes to the issue of free speech restrictions. The argument is that, while free speech is important, First Amendment-style defences of it fail to take account of the fact that power is unevenly distributed. Specifically, when the person doing the offending is more powerful than the person being offended, free speech entrenches, and even magnifies, inequality.

To this extent the disagreement over free speech touches on an old problem of political philosophy: the tension between ‘negative’ and ‘positive’ freedom. Roughly stated, negative freedom denotes freedom from external restraint, whereas positive freedom denotes the freedom to flourish, to change one’s personal circumstances. A homeless person may be free to buy a house in the sense that there is no law stopping her from doing so; but since she hasn’t got the money to do so it doesn’t really benefit her much. She is free in the first sense but not in the second.

The question for social democrats, then, is whether free speech is one of the ‘freedoms’ we want, so to say, to tinker with in order to bring about greater equality. How do we weigh – are we required to weigh – the liberty of the offending speaker against the equality of the offended hearer?

In my view, that argument has to begin with more than a grudging acknowledgment that we would have a lot less social equality than we do had it not been for the extension of the intellectual franchise. It borders on tautology to say that the elevation of freedom of speech to the status of a fundamental right is both the cause and the consequence of a redistribution of power away from the few and towards the many. It’s no mystery why radicals such as Thomas Paine, Karl Marx, George Orwell and Rosa Luxemburg championed the right to free expression. All of them recognised that free expression, though no guarantor of a just society, was nevertheless a prerequisite for it.

This leads to a second point, which is that the best response to discriminatory speech is speech designed to counter it. Even if it were possible to abolish racist or sexist speech – and it isn’t, any more than it is possible to keep crows out of your garden by shutting the front gate – proscribing such speech is not always helpful to the cause of greater equality. Notwithstanding the possibility that scientists discover a gene for tolerance which can be switched on by your local GP, every generation has to learn, not just that certain things are wrong, but why and in what ways they’re wrong. To that extent, and as I told my interlocutor in the Coffee and Papers session in Sydney, the idea that defending the right to be a bigot is helpful to the cause of bigotry is based on a false antithesis. Not only is my commitment to racial tolerance not at odds with my commitment to free speech; they are two sides of the same political coin.

These arguments are hard to sell on the left, not least because the cause of minorities has fused in the progressive mind with the idea that racist or sexist language is itself a species of violence and not its ideational proxy – an idea that owes a lot of its potency to the post-structuralism that overtook Western universities in the later decades of the twentieth century. But I will be the first to admit that the behaviour and priorities of the current government have made their prosecution harder still. Indeed, so incompetent has the government’s attempt to reform the Racial Discrimination Act been that it is now necessary to recast the free speech debate. And since the question of power would appear to be, for the left at least, the sticking point, I think it would make sense to do so in a way that put that concept front and centre.

As it stands, the attempt to reform 18C is entwined in the collective consciousness with a whole range of (rather marginal) ‘culture war’ issues: knights and dames, the school chaplaincy program, the philistine attacks on the ABC. George Brandis’s attempt to tie the issues of free speech and climate change together in his interview with Spiked Online has raised suspicions even further, revealing as it does a determination to use the issue of 18C to press the Coalition’s broader agenda, as well as a staggering ignorance of both the principle and practice of freedom of speech, which does not preclude the formation of a consensus, or something fairly close to one. Nor does it help that the columnist Andrew Bolt – the man whose liability under the RDA raised the curtain on this latest phase of the debate – is a pretty vociferous culture warrior himself. In short, the government’s stance on 18C looks political in the narrow sense; it has soiled its own argument by association.

None of this destroys the case for reforming section 18C. Yes, Andrew Bolt is a progressive’s nightmare. But such progressives as defended him were not doing so because they agreed with him; they were doing so because they disagreed with him and were reluctant to have their own opinions turned into dead dogma by legal fiat. (A point that is often missed in this debate is that when you ban somebody’s right to say something you simultaneously ban everyone’s right to hear it. Sorry, but it isn’t only the feelings of the nine plaintiffs in the Bolt case that are at issue here.) But in another sense the behaviour of Bolt and his fellow conservatives makes it patently clear that they are neither competent to defend free speech nor especially interested in doing so. Indeed, when it comes to the question of free speech, most conservatives seem to be perfectly happy to put power in front of principle.

Thus we are treated to the spectacle, not only of the Abbott Government applying for sinister suppression orders, refusing to answer the press’s questions on its filthy ‘stop the boats’ policy, and accusing the national broadcaster of lacking ‘a basic affection for the home team’ in its reporting of ‘on-water matters’, but also of the conservative press attacking the ABC and the Guardian for reporting the Indonesian phone taps, denouncing Edward Snowden as a traitor, and turning a deaf ear to the attempts of Liberal senators to ban secondary boycotts in Tasmania. Meanwhile, Bolt himself takes leave to describe as ‘false and defamatory’ comments made by Marcia Langton on the ABC’s gabfest Q&A, forcing both Professor Langton and the ABC to apologise; and Chris Kenny sues the ABC over a doctored image on The Hamster Decides which shows him shagging a labradoodle – this with the backing of his paper, The Australian.

In short, the very people who, with maximum noise and ostentation, have affected to mount guard over Mr Bolt’s right to criticise light-skinned Aborigines would appear to be remarkably thin-skinned themselves.

Could this be described as a double standard? Actually I don’t think it could – quite. In the sense in which it’s usually taken, the principle of free speech is not incompatible with the classification of information or the existence of laws against defamation, fraud and highly misleading advertising. Certainly there is an in-principle difference between a law concerned with the correction of falsehoods that damage a person’s reputation and a law that attempts to police opinion through the proscription of certain beliefs or language. (18C is a provision of the second kind, though the subsequent section, 18D, sets out an exemption for anything said ‘reasonably and in good faith’. In the articles for which he was sued, Bolt made certain errors of fact that were adduced as evidence of his bad faith and ensured that any defence of fair comment, as defined in 18D, would fail. Had he not made any errors of fact, it’s possible he would still have been liable, though whether it’s probable is an open question.) But even if we accept the view that to go into the public sphere with information that we know to be false, or for which we have no good evidence, is corrosive of the very search for truth that it is the whole point of free speech to promote and protect, it is clear that our defamation laws, as they are currently constituted, favour the powerful. To that extent, both Bolt and Kenny were invoking/exercising a right that is only theoretically available to those with very little money. The poor, after all, are no more ‘free’ to risk an unsuccessful defamation suit than they are to buy a crate of Dom Perignon.

The powerful are aware of this and are aware as well that oftentimes the merest threat of a defamation suit is enough to scare their enemies into silence. They know that most people, and even most newspapers, are unlikely to want to defend themselves from the accusation of defamation, especially given the time and money involved in such an enterprise and the fact that defamation law runs contrary to natural justice to the extent that it is up to the defendant to establish the truth of his ‘defamatory’ statements and not up to the plaintiff to establish their falsehood. Hence the appeal of defamation law to those concerned to protect their interests with the minimum of messy publicity: in effect, the person accused of defamation is guilty till proven innocent.

In an article on press freedom in Australia, the UK-based barrister Geoffrey Robertson writes that that freedom ‘was never entrenched because judges were members of a reactionary upper class who had no stomach for criticism, and in the Victorian era they fashioned the laws of libel and contempt to provide this class with exorbitant protection – especially from popular newspapers that had started up to cater for the mass readership produced by the educational reforms of the 1850s’. I suppose it counts as an irony that it has fallen to certain newspaper men to raise the spectre of defamation in a number of recent controversies; but there are plenty of politicians on hand to remind the good men and women of the press not to get too big for their boots. As I write, Joe Hockey is preparing to sue Fairfax Media over an article that had the temerity to suggest that a fundraising forum offering access to the Treasurer in return for donations might be very slightly suspicious. If he succeeds, he will join a long list of pollies who have successfully sued the media for money – a list including Peter Costello, Bob Hawke, Joh Bjelke Petersen and the current Prime Minister of Australia.

Needless to say, these legal deformities derive from the country of my birth, England, where the laws of libel have, until recently, been a source of national embarrassment and a menace to the international community. Thanks to a law associated with a nineteenth-century German Duke which meant that every publication of a libel could be treated as a separate cause for action, dictators, businessmen and movie stars were able to punish critics and opponents in the plaintiff-friendly British courts simply because the magazine or newspaper in which the libel happened to occur was available for sale (or for viewing) in the UK. Now, in the wake of the 2013 Defamation Act, ‘libel tourism’ is in retreat and defamation law more generally a lot less oppressive than it was in the past. The journalist and lawyer Richard Ackland even goes so far as to say that the new arrangements in the mother country have left Australia ‘in the dust’.

In my book, On Offence: The Politics of Indignation, I chose not to touch on defamation, except to distinguish it (as I do above) from provisions of the 18C variety. Interested as I was, and am, in the way in which accusations of offence have become a kind of political currency, I was loath to get bogged down in a debate about the ins and outs of defamation law, which even many legal experts regard as hopelessly, and indeed pointlessly, Byzantine. But it is clear that the threat of a defamation suit is often enough to discourage journalists from ventilating controversial opinions and from attempting to defend them when they do. Bolt claimed to have been ‘devastated’ by Langton’s assertion that he believed in ‘race theories’, while Chris Kenny was even more self-pitying, suggesting that the ABC was trying to ‘intimidate’ him by allowing the boys at The Hamster Decides to air the offending photograph, which, incidentally, was as much a joke at the expense of the ABC itself as it was at the expense of the rightwing commentator. Both reactions were ridiculous, and both, I’m sure, had the desired effect, which was to chill the speech of political opponents. I trust I am not alone in believing that such people have now forgone their right to lecture the rest of us on free expression.

If the Liberals are serious about freedom of speech, they should come forward at the next election with proposals to overhaul, not just 18C, but also the defamation laws. In my view, a whole suite of policies is needed in order to ensure robust debate on important issues, however sensitive, and also to protect Australian journalists against vexatious litigation, suppression orders, and bullying attempts to uncover their sources. Needless to say, a proper Bill of Rights (or Statute of Liberty, as Robertson prefers) containing an explicit right to free expression would create the legal and philosophical framework needed for such a set of policies. That most conservative politicians remain opposed to this idea – no doubt because they suspect that their policies are less friendly to liberty than they like to pretend – makes any general, Liberal-led initiative on free expression highly unlikely.

There is thus an opportunity for the left to reclaim the issue of free speech, though reclaiming it will necessarily involve a bit more intellectual sinew than is currently in evidence in the debate on 18C, where the arguments of the great majority of progressives essentially boil down to saying that on questions of racial sensitivity the state should do our arguing for us. It will involve rediscovering what the great defenders of intellectual liberty always knew: that to demand the suppression of someone else’s opinion is to make yourself a prisoner of your own. But it will also involve applying that principle to those who affect to accept it already but whose behaviour is evidence to the contrary. It should be a source of embarrassment to the left that the right has made the running on this issue. That it has now clattered, sweating and wheezing, into the first hurdle should, I think, afford an opportunity to remind ourselves that liberty and equality were not always at odds in the radical mind.

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First published at New Matilda.