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December 17th 2012 print

James Allan

Spigelman’s gag reflex

When it comes to championing free speech, the former Chief Justice of NSW makes at best a limp and hollow-chested contender. To stand for something, you need to understand what is it, and Spigelman has barely a clue


Friend, foe, men, women, listen to this. I come to query Mr. Spigelman, not to praise him.


You see, James Spigelman, former Chief Justice of the New South Wales Supreme Court, is (depending on your vantage) being praised or pilloried for his Human Rights Day Oration in which he lambasted this Gilllard government’s proposals for further inroads into free speech.

As a strong free speech proponent myself, that is wholly to be welcomed.  But at the same time all of us need to be very, very clear that the Spigelman defence of free speech is itself pretty enervated. Put differently, a defence of free speech should be made of sterner stuff.

First off, let me make it clear that I think Mr. Spigelman was a very fine judge. Indeed, I wish this Labor government had appointed him Chief Justice of the High Court back when that position was last open and he was one of the few mooted candidates.

That said, no one reading his Oration can really say it was a whole-hearted defence of free speech in the tradition, say, of John Stuart Mill. In fact, had he made that speech in the US it would by some have been classed as anti-free speech. Such is the sorry state of free speech in this country, alas, that an address such as Mr. Spigelman’s is taken to be a rousing defence of free speech when in North America – even in Canada of late – it would be seen by some in quite the opposite terms.

Take this claim by Mr. Spigelman, as excerpted in the December 12 edition of The Australian: “Words such as ‘offend’ and ‘insult’ impinge on freedom of speech in a way that words such as ‘humiliate’, ‘denigrate’, ‘intimidate’, ‘incite hostility’ or ‘hatred’ do not.”

But really, is there anything to that claim? As talented a legal mind as Mr. Spigelman possesses, I don’t think even he can elaborate on the difference between "to offend" and "to humiliate" in any real-life scenario so that speech could be allowed to cross the line on the first criterion but NOT cross the line on the second.

For instance, get rid of the "offend" test in the Bolt case and almost certainly, given the current hate speech legislation and the judge in that case, Bolt would still lose under the "humiliate" test. I can’t think of any way in which a legal test, objective or subjective, could be made to work such that all of us would be free to offend others, but not to humiliate them, with the result that we would actually be left with more that we could say. No, the Spigelman line would leave us almost exactly where we are now.  It would do nothing to expand the scope of free speech or to fight off further inroads.

Trying to distinguish the two is an exercise in scholasticism. And pretending that freeing up the former (yep, you can now offend) but not the latter (sorry, you still can’t humiliate) is some sort of wonderful free speech advance is, in my view, baloney (to put it in the kindest terms possible).

The same goes for "denigrate", which Mr. Spigelman seems happy enough to keep, meaning that he endorses prohibiting the denigration of others. Okay. But in Canada, until the elected legislature recently moved to repeal their awful hate speech laws, a stand up comic was brought before a hate speech tribunal and fined five figures for mocking lesbians in the audience who had heckled him.

So tell me, Mr. Spigelman, is that comic’s response fine? Offensive? Humiliating? Denigrating? And who gets to say, them or us? And even if it is a reasonable-person-in-the-community test, if we can’t denigrate and we can’t humiliate, there isn’t much offending left to do, is there? And we haven’t got much free speech left, have we?

Or at least that’s my view until Mr. Spigelman can give us a few, real-life, plausible examples of how much offending we can do that won’t still count as humiliating and denigrating, and without the chilling effect of fearing that some unelected judge will classify what we said as humiliating and denigrating.

In my view, the sort of fine distinction that Mr. Spigelman is trying to construct is a prime example of wanting to have your cake and eat it too. Sure, it’s wonderful that a former top judge has come out and said something against the many awful inroads made, and being made, into free speech in this country. And as a man with former ties to the Labor Party it is better still.

But come off it! This isn’t a vigorous defence of free speech. A defence of free speech, a real, meaningful defence, would demand that we get rid of all of these two-bit restrictions on what we can say, which is precisely how things are in the United States by the way.

Mr. Spigelman also mentions a book by Jeremy Waldron as having influenced him, a book as it happens that I have been asked to review for a top US law review. But here’s the thing: in American terms Jeremy Waldron’s book is not seen as a ringing endorsement of free speech. Indeed, it can be understood as making a theoretical case for supporting hate speech laws, laws that do not exist in the US, and that on anyone’s understanding place limits on what you and I can say.

So citing Professor Waldron, however honourable a man, as being influential in your thinking is hardly a comfort to those of us who believe that real free speech in a democracy means citizens having to grow thick skins, not play the victim, and to just suck it up when others say things they don’t like.

Sure, all societies will need to stop the counselling or incitement of violence. But the other sort of I feel worse about myself having heard what you said tests must be shunned.

And it hardly helps to point to the UN, where a concerted effort has been underway for years to bring back blasphemy laws. Frankly, I don’t give a toss what the UN thinks. Its record on free speech isn’t nearly as good even as ours.

Of course ours used to be great. Today, it is only so-so. And with the Gillard government’s proposals looming, it could become God awful. What a disgrace!

These proposals, not to mention some existing legislation, need to be buried, not praised, nor even cake-and-eat-it-too critiqued. It would be nice if the Coalition started taking an even stronger stand on this most crucial of all issues facing the voters.