Close, Minister, but no Free-Speech Cigar

My Lord but I like Quadrant and Quadrant Online. And though I have never met the man, I like the views of Dominic Perrottet, NSW Minister for Finance.  And I like much of what he said about free speech in his talk to the NSW Parliament, as reported below by this website.  But all that said, let me quibble with Mr. Perrottet’s claim that ‘our right to free speech comes with the responsibility to not incite violence or hatred’.

My worry is not about grammar and split infinitives, though that would be what irked Mum.  No, I don’t much like the casual way in which it is just assumed that all of us readers and listeners would agree that we have a responsibility not to incite hatred.  Certainly that was not the view of John Stuart Mill.  Nor is it the legal and constitutional position in the United States, where there does not exist a single hate-speech law of the sort we see in Australia with our Section 18C.  The Yanks have no hate-speech laws whatsoever and yet they far better integrate Muslims, say, than any of the many European countries where hate-speech laws proliferate.

Why? First off, put to one side preventing the inciting of violence.  Arguments and ideas are what matter and you can’t – or should not be allowed to – win those contests of ideas by means of physical violence.  So, in that sense, we all have both legal and a moral responsibilities not to incite violence against those with whom we differ.  And just about no one disagrees about that.

But when it comes to ideas, including ones that instill in some listeners feelings of offence and humiliation, of being hated and the like, there’s a big difference: in the US you have to grow a thick skin and just suck it up.  You need to learn that part of being a citizen in a thriving democracy is accepting that other people will say things that offend you.  And humiliate you.  And yes, make you really, really angry.  They may even say things that make you really, really angry with other people.

‘Too bad’ is the Mill line.  ‘Too bad’ is the American line.  ‘Too bad’ is my view too.  Grow a thick skin and then tell us why the other person – the person who is not counselling or inciting violence but only attacking you and your beliefs or someone else’s beliefs – is wrong.

Hate-speech laws are premised on one of three pre-suppositions, all flawed in my view.  The goal of preventing speech that some deem hateful is one of these three:

i) To protect the dignity and feelings of those against whom the speech is aimed.

The idea here is to prevent these targeted people from knowing what some other group really think about them.  This is flawed because it supposes that wilful blindness is a good idea.  The silenced speaker will still think what he now cannot say, but the targeted person won’t know about it.  I suppose this delivers a sense of security to people, but it’s a false sense of security.  Better, in my view, to know about the attitudes of the crazy imam or the octogenarian neo-Nazi.  This is a very weak rationale.

ii) That first rationale for having laws that silence what some deem to be hate speech is focused on how these laws might help the targets of that speech.

A second rationale looks at how these laws might help the speakers themselves.  Maybe, if we silence them, they will reform?  Maybe they will have a Damascene conversion and change their underlying beliefs?  This is such a weak rationale — it rests on implausibility piled on implausibility — that I say no more about it.

This is a super-duper weak rationale.

  iii)  While the first rationale focuses on how hate speech laws – shutting people up – might help the targets of that speech, and the second on how they might help the speakers themselves, the third rationale focuses on third-party listeners and readers.

Clearly, this is why most proponents of hate-speech laws want them enacted and are fighting so hard to retain our Section 18C.  This third rationale is focused on how these laws might help all the many people out there who hear these views and opinions.  And the core worry is that such hateful speech will persuade them; it will convince them; it will change their opinions and, as a direct consequence, the hate will multiply.  Let’s be honest, it is precisely this worry that lies at the heart of almost all defences of hate-speech laws that you hear on the ABC and emanating from our Human Rights Commission and elsewhere.

There are real problems with this third rationale. First off, it requires a very dim and pessimistic view as to the capabilities and capacities of our fellow citizens.  It is premised, more or less, on the view that we can (allegedly) trust senior professors at out tertiary institutions to dismiss hateful speech, and maybe (more dubiously) top-level ABC inhabitants of Ultimo , we simply can’t expect mere plumbers, secretaries and the like to see through the rantings and ravings of Holocaust deniers, those peddling homophobic abuse, or crazy, jabbering Imams.  I mean, these average people don’t even have doctorates in sociology, do they?  We need to prevent them from hearing these views by silencing the speakers of this hate.’

That is it in a sarcastic nutshell.  The ‘fear of these ideas proliferating’ rationale for hate speech laws is premised on a deep and abiding distrust of your average voter.  I’m not sure why the common folk are ever trusted to vote (although, deep down, more than a few people don’t much trust them to vote either). But notice again that in the US they do trust plumbers and secretaries not to be swayed by hate speech.  And that trust is more than warranted.  As I said, Muslims do better, far better, in the US than they do in all those countries where hate-speech laws proliferate.  So do Jews.  So do homosexuals.  I suppose you might think that average Australians are less able to see through the spewers of hate than are Americans.  But I doubt any Section 18C proponents would say that out loud.

And of course there is also the other problem that John Stuart Mill pointed out many times.  The ‘fear of these ideas proliferating’ defence of hate-speech laws works so much better if you simply assume all such speech is false.  But what if some tiny percentage is true?  In other words, what if you worry that in the real world Section 18C-type laws will inevitably end up being over-inclusive?  So, maybe, one starts off worried about hateful comments on race, but the legal prohibitions leak into foreclosing comments about religion.  Why shouldn’t any and all views on religion be fair game?  After all, religion rests on truth claims about the world.  And as Mill pointed out, truth is more likely to emerge from the crucible of competing claims and opinions and views – including those that are powerfully expressed (or sarcastically so), and with what the likes of Justice Bromberg, as demonstrated in the Bolt case, might consider to be a tone of which he disapproves.  In fact, that sort of Millian idea lies at the very centre of the Enlightenment and of liberalism.

In opposition to it is the notion that a few judges or parliamentarians or human-rights commissioners can know up front what is true and pre-emptively close off debate because they know, better than all others, where truth lies.  Heck, Mill thought that even when an idea is so universally accepted virtually no one disputes it, even then it still might pay to employ someone to take a run at it.  There are benefits to these truths themselves in being tested and attacked; the benefits of free debate do not just lie in exposing falsehoods.

This third rationale, the ‘I can trust myself, of course, but I can’t trust that poor benighted bastard who lives next door and so I better shut up those people who say hateful things’, is seductive but unpersuasive.  It rests on a distorted elitism that can never be fully cashed out.

And so we return to Mr. Perrottet’s otherwise powerful defence of free speech.  What does he mean when he says that we have a responsibility not to incite hatred?  Does he mean that as individuals we should be polite in how we frame our arguments?  I can sort of buy that as a matter of etiquette.  Of course there are times when biting sarcasm is warranted, whatever Justice Bromberg might think!  But the question is what should society and the laws do when someone oversteps the bounds of politeness and, say, makes a point about affirmative action or religious belief or anything else in a way that some thin-skinned person perceives or claims is hateful? Does society have an obligation or responsibility to silence that person?

No, Mr. Perrottet, society does not.  Indeed, there is a Millian responsibility to ensure that person can speak.  The whole notion of free speech makes no sense if you confine it only to ideas with which you feel comfortable and at ease and that don’t shake you up, offend you, anger you, whatever.  A Coke commercial where we all stand together and sing ‘Kumbaya’ will never need the backing of a free-speech doctrine in order to be heard.

Okay, there may at present in Australia be a misguided and unwarranted legal responsibility as regards saying things others feel is hateful.  But it’s a bad law, Mr. Perrottet: there is no defensible moral obligation not to incite hatred.  In what was an otherwise very nice speech it would have been nice to hear you say so in uncompromising terms.  Why?  Because once you start parsing what counts as ‘hateful’ the orbit just keeps expanding and you end up with the sort of ridiculous Tasmanian example against which you railed.

These days I find myself ever less frequently in agreement with George Brandis.  But back when he said that the core notion of free speech in fact extends, and is meant to extend, to the protection of people whom others think to be bigots, well, George was right back then.

James Allan, Garrick Professor of Law at the University of Queensland is the author of Democracy in Decline