The opportunistic embrace of free speech

December 19, 2013

The air turned blue at Allianz Stadium last month when Socceroos captain Lucas Neill let fly with expletives in response to choice words from spectators. Both Mr Neill and the spectators may have copped some media flak for their outburst, but they were lucky not to cop something bigger.

For if they had been charged and convicted of using offensive language in a public place, they may have been liable for up to 100 hours community service under NSW public order legislation.

This situation undoubtedly horrifies defenders of free speech. The speed with which new Attorney-General George Brandis has acted to repeal laws against race hate speech and install prominent free marketeer Tim Wilson as human rights commissioner suggests that Mr Brandis and his supporters will be moving with alacrity to remove all such affronts to freedom of speech.

For there are so many targets for these keen-eyed defenders of freedom, so much low-hanging fruit. Public order offences are just one of many pressing areas for action.

If freedom of speech means it’s acceptable, however regretful, to vilify someone on the basis of their skin, then surely it’s also acceptable, if regretful, to vilify them on the basis of character. So defamation laws are an obvious target.

The Trade Practices Act prohibits companies and executives talking to one another about price collusion or market manipulation. But again, this is fundamentally an impingement on their right to free speech.

Curiously, though, we have heard little from Mr Brandis or other defenders of free speech on any of these areas. Why? To understand this, let’s start by examining the arguments at play.

We are told consistently by defenders of free speech that freedom is the most fundamental human value that sits atop all others, and one which is routinely overlooked by public policy in Australia. The Institute of Public Affairs, Tim Wilson’s previous employer, describes itself as “the voice of freedom” and on the Drum recently, the IPA’s Chris Berg wrote, “Australia’s well-funded human rights establishment has completely vacated the field on basic rights like freedom of speech, freedom of conscience, and freedom of association.”

Yet even if freedom is paramount (and I would argue it’s no more important than fairness or justice), there are different freedoms to be balanced as Berg’s assertion implies. The economist Amartya Sen offers an example of different kinds of justice. Three children fight over a toy flute. One has no other toys, when the others have many. One can play the flute, when the others can’t. One made the flute, when the others didn’t. Each has a just claim to the flute, but these are different kind of justices which must be balanced.

Freedom is the same – it comes in many guises. We value freedom from slavery and freedom from penury. We value the freedom in the “pursuit of life, liberty and happiness” and the freedom in “liberte, egalite, fraternite”.

So how do we reconcile my right to freedom of speech with your right to freedom from vilification? What the existing Racial Discrimination Act seeks to do is balance these freedoms. To protect freedom of speech, the Act specifies that, provided they are offered in good faith, artistic works, scientific debate and fair comment on a matter of public interest are exempt from the vilification laws.

Each of the freedom of speech examples above balances similar freedoms. Public order laws protect a freedom from insulted or offence. Defamation laws protect a freedom from unjust reputational damage. The Trade Practices Act protects consumers’ freedom from excess market power.

So this balancing of freedoms is hardly unique to racial vilification laws, and since libertarians haven’t attacked any of these other laws, it appears there is a more selective approach under way. For a pithy example of this selectivity, consider the recent attack of conservative commentator Janet Albrechtsen on the ABC for publishing Edward Snowden’s revelations of Australia’s spying on Indonesia. Surely a right-wing defender of freedom like Albrechtsen would champion a fellow publisher’s right to freedom of speech. But no – the Australian’s crusade against the ABC trumps any quibbles over freedom of speech.

Why the selectivity? Well, it appears the Right embrace freedom of speech opportunistically as it suits them. You might recall the Racial Vilification Act is often referred to as the Bolt law, after right-wing commentator Andrew Bolt who was convicted for vilifying a group of indigenous Australians. In the wake of this case, the law became symbolic in the culture wars as an example of the creeping influence of the Left. That it was used in a civil action against Bolt, a staunch supporter of the Coalition who was invited to the recent Kirribilli House soiree for favoured conservative journalists, made the symbol all the more powerful.

The concern is that Mr Brandis is moving on the Racial Discrimination Act to redress a symbolic injury to the Right rather than carefully balancing competing freedoms as the current Act does. Australians should be deeply concerned about this move.