‘I disapprove of what you say, but I will defend to death your right to say it.’ What relevance does this quotation have in discussions about the Racial Discrimination Act?

I  Introduction

Had Voltaire been alive in Australia, in 2014, he might have said, instead of his famous aphorism,^[1] ‘People … have a right to be bigots … In a free country, people do have rights to say things that other people find offensive, insulting or bigoted.’^[2] Or so, one imagines, Senator George Brandis would like to think.

‘I disapprove of what you say, but I will defend to death your right to say it’ has become a motto of the free speech lobby. Certainly, its spirit animated Senator Brandis’s controversial — and ultimately abandoned — proposal to amend the Racial Discrimination Act 1975 (Cth) (‘RDA’), so as to wind back the anti-hate speech provisions that had been introduced into the Act around 20 years earlier.^[3] The purpose of this essay is not, however, to undertake a close analysis of the quotation itself. Rather, ‘I disapprove of what you say…’ provides a useful springboard to dive into the quagmire of arguments for and against the legal sanction of racist speech.

I begin with a brief history of the RDA, setting out its purpose and explaining the basic operation of the Act’s key anti-hate speech provisions, ss 18C and 18D, the full text of which can be found in the appendix to this essay. I then turn to consider three of the most important arguments in favour of free speech, namely, that it is a requirement of pursuit of truth, of democratic legitimacy, and of individual dignity. I finish where many begin, with the ‘harm principle’, as famously articulated by John Stuart Mill.^[4] I argue that the harm principle serves little practical purpose by itself, as the scope of its application is entirely dependent on how ‘harm’ is defined. Overall, I seek to show that free speech is not of inherent value, but is rightly understood as a tool appropriately used in pursuit of more fundamental goals. When understood this way, it is clear that the imposition of certain limits on public speech is not only justified, but is required by the consistent application of the most compelling arguments for free speech.

II  A Short History of the Racial Discrimination Act

The RDA was enacted in 1975, in pursuance of Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (‘Convention’).[5] Significantly, the Act did not include provisions curtailing public speech, in spite of the requirement to do so under art 4(a) of the Convention. When the Australian Government ratified the Convention, on 30 September 1975, it made a reservation in respect of art 4(a), stating that although it was ‘not … in a position … to treat as offences all matters covered by article 4 (a)’ it was its intention to seek legislation doing so ‘at the first suitable moment’.^[6]

This intention was realised with the enactment of the Racial Hatred Act 1995 (Cth), which made it an offence, for the first time under Commonwealth law, to do an act on the basis of a person’s ‘race, colour or national or ethnic origin’^[7] that ‘is reasonably likely … to offend, insult, humiliate or intimidate [that] person’.^[8] The quoted provision became s 18C of the RDA, while s 18D of the same Act created certain exemptions, including for ‘debate made or held for any genuine academic, artistic or scientific purpose’^[9] and ‘fair and accurate report of any event … of public interest’^[10] or ‘fair comment’ on such an event.^[11]

In the Second Reading Speech for the Racial Hatred Bill 1995 (Cth), Senator Chris Evans acknowledged the free speech trade-off involved in enacting anti-hate speech legislation, but stated that the Bill ‘strikes the appropriate balance between the right to free speech and the right to be protected from racial hatred and its consequences.’^[12] As more recent developments have shown, not everyone agrees with the Senator’s estimation.

The catalyst for Senator Brandis’s proposals, mentioned in the introduction, was the widely report case of Eatock v Bolt.^[13] In that case, a journalist, Andrew Bolt, was found to have breached s 18C of the RDA by writing two articles, in the Herald Sun newspaper, suggesting that certain ‘white Aborigines’^[14] were ‘not genuinely aboriginal persons’ but had ‘chosen to falsely identify as aboriginal’ in order to take advantage of ‘career opportunities available to aboriginal people’.^[15] Shortly after Eatock v Bolt was decided, Senator Brandis took to the pages of The Australian to decry s 18C as having ‘no place in a society that values freedom of expression and democratic governance.’^[16]

In September 2014, the Racial Discrimination Amendment Bill 2014 (Cth), which would have removed from the ambit of s 18C(1)(a) of the RDA acts that merely offend or insult,^[17] was introduced into the Senate. By this point, the government had withdrawn its support for the Bill, Prime Minister Tony Abbott having made a ‘leadership call’ on the proposed amendments, which would, he argued, have imperilled the unity of ‘Team Australia’ in the fight against terrorism.^[18] However, the debate continued and looks set to continue still.^[19] The central question for the remainder of this essay is whether s 18C does indeed have ‘no place in a society that values freedom of expression and democratic governance.’^[20]

III  Freedom of Speech: A Delicate Balance

A  The Pursuit of Truth

One of the arguments most commonly made in support of free speech is that it necessary for the pursuit of truth, truth being, it is assumed, preferable to falsity. As Mill puts it, ‘if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true.’^[21] The world of ideas, so the argument goes, is like the market of goods: ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’.^[22]

In responding to this, I confine myself to the operation of the RDA. The free speech absolutist may argue that to proscribe even an act as manifestly unconcerned with the pursuit of truth as writing ‘wog’ on a colleague’s timesheet^[23] is to inhibit the free flow of ideas to the detriment of society. To the absolutist, the response is simple: s 18D. As noted above, good faith debate for a genuine academic purpose is exempted from being unlawful:^[24] however odious it may be to members of the Australian community, a reasoned journal article arguing, for example, that Australians of Arab descent are inferior and ought to be excluded from mainstream society would not attract the RDA’s censure.

It is important to recognise that s 18D does not give a free hand to anyone claiming to be making an ‘argument’. This is demonstrated by Jones v Scully,^[25] one of a number of cases in which the publication of material describing the Holocaust as a Jewish conspiracy was held to have breached s 18C.^[26] Scully’s s 18D defence failed because her publication had included falsehoods which she had made no attempt to verify by way of ‘formal education’ or consultation with ‘experts’.^[27] Consequently, it could not be said that she had acted in good faith. Those of an egalitarian bent may find unsatisfactory the arguably elitist reasoning in Jones v Scully; however, to require simply that individuals wishing to make statements that would breach s 18C at least attempt to be reasonable and balanced in their arguments does not appear inconsistent with the principle that our laws should encourage the pursuit of truth. This stance becomes even more compelling when the ‘marketplace of ideas’ argument itself is debunked.

Thus, with respect to the pursuit of truth, I argue, simply, that the world of ideas does not work like the market of goods. Truth is not a product that can be bought, sold and traded. While competition law may restrict economic monopolies, there are no equivalent regulatory mechanisms in the world of ideas.^[28] There is no doubt that the pursuit of truth requires that people be free to say things that others find offensive. The purpose to which ss 18C and 18D of the RDA are directed is the balancing of this freedom with the harm inflicted by racist hate speech.

B  Democratic Legitimacy

A second argument in support of free speech it that it is a requirement of political legitimacy. Ronald Dworkin has argued that the price we must pay for having legitimate laws against violence and discrimination is that those who oppose such laws are free to speak out against them.^[29] In Australia, the s 18D exemptions and the implied freedom of political communication in the Constitution^[30] mean that it is not true that opponents of, for example, laws against racist violence have no opportunity to speak out. However, for Dworkin, it is not enough that there be avenues for dissent within the formal political discourse. ‘A community’s legislation and policy’, he writes,  ‘are determined more by its moral and cultural environment, the mix of its people’s opinions, prejudices, tastes, and attitudes, than by editorial columns or party political broadcasts or stump political speeches.’^[31] Consequently, Dworkin believes that it is as unfair to limit individuals’ informal contributions to that moral climate as it is to destroy political pamphlets.^[32]

Waldron responds to this effectively, I believe, by questioning Dworkin’s presentation of democratic legitimacy as an all-or-nothing concept, a move which necessarily prevents compromise.^[33] Whether or not a community’s moral and cultural environment is more determinative of its legislation and policy than its formal political discourse, it is clear that the political discourse plays at least some part. For this reason, it cannot be sustained that a society that forbids all discussion of political matters outside a formal framework, but allows freedom of speech within that framework, lacks all legitimacy. The RDA, of course, presents a far less radical situation: the s 18D exemptions and guaranteed freedom of political communication do provide meaningful avenues for contribution to the political discourse. As with the arguments for and against freedom of speech in respect of the pursuit of truth, the task is to balance the benefits of free political communication with the harm of unfettered hate speech. At this point, we can go no further without turning to consider what harm hate speech is capable of inflicting, and the appropriate scope of the law in constraining such speech.

C  A Matter of Dignity

Almost all people believe that speech that directly instigates violence should be illegal;^[34] increasingly, there is recognition that hate speech can have profound psychological effects that should not be treated differently from physical harm;^[35] it is also obvious that hate speech can be offensive and insulting. Given that the recent debate about s 18C of the RDA centred on the words ‘offend’ and ‘insult’, I have chosen to focus on the argument that certain types of act should be proscribed irrespective of whether they cause ‘harm’ in the sense of a physical attack or any psychological equivalent. This is not to say that there is a ‘right’ not to be offended. Few people go so far.^[36] Rather, I take as my starting point the free speech argument that human dignity requires freedom of expression. From there, I argue that dignity equally requires a basic level of respect that is denied when racist speech has the effect of social denigration or subjugation.

The ‘dignity’ argument for freedom of speech was important for Mill, who, in DeCew’s words, believed that ‘[f]ree speech serves as a vital way to guarantee one’s ability to develop one’s faculties and talents and to realize one’s individual potential and creativity.’^[37] This is a powerful argument. However, as Tim Soutphommasane has shown, hate speech, by instilling in its targets a sense of inferiority, can effectively deny any chance of self-realisation.^[38] As he puts it, ‘It is difficult to see how someone can reach their potential, or be a truly self-determining individual, if they constantly second-guess themselves or feel constantly without power or hope.’^[39] Of course, mere offence will not, in most people, produce the effect that Soutphommasane describes. For this reason, what one might call the ‘dignity principle’ does not justify prohibiting speech that merely offends or insults.

On this reading, it would appear that the speech-limiting effect of s 18C is too great; however, judicial interpretation has softened the Act’s operation. Since Creek v Cairns Post Pty Ltd was decided, in 2001, s 18C(1)(a) has been interpreted as referring to acts causing ‘profound and serious effects, not to be likened to mere slights.’^[40] This certainly comes close to the approach implied by the dignity principle. Indeed, I argue that, by requiring that an act attracting liability under s 18C be motivated by the affected person’s ‘race, colour or national or ethnic origin’,^[41] the section operates as it should under the dignity principle. The potential-limiting sense of inferiority that Soutphommasane describes is the result of treatment that accords second-class status to certain individuals. As Waldron writes, particularly likely to have this effect are ‘group-directed attacks which proclaim that all or most of the members of a given group are, by virtue of their race or some other ascriptive characteristic, not worthy of being treated as members of society in good standing.’^[42] It is arguable that any racially motivated hate speech that causes ‘profound and serious effects’ will have an effect on targeted individuals’ dignity so defined.

That dignity and self-realisation require protection from racist hate speech does not alter the fact that they also require freedom of expression. Again, a balance must be sought. The RDA prioritises basic respect and security in public, while leaving unfettered individuals’ rights to express themselves in private.^[43] In a multicultural society that prides itself on tolerance, I argue that this is an appropriate balance.

IV  Conclusion

Much of the academic debate that provides the background against which the RDA operates presents a preoccupation with abstract principles.^[44] Most people agree with the harm principle, according to which speech that causes harm should be constrained. Then the debate turns to how close the connection between speech and harm must be to invoke the harm principle,^[45] or how severe the harm.^[46] Some people appeal to a separate ‘offence principle’,^[47] while others respond that any offence that may justify curtailing speech should be incorporated into the harm principle.^[48] However, the principles, by themselves, provide little guidance to those wishing to delineate the appropriate scope of the RDA. In this essay I have argued that the value of free speech is not inherent but depends on its ability to produce desirable outcomes. What is and is not desirable will change as the moral climate changes, but what is clear is that a trade-off is always involved where free speech is concerned. Considering the harm that hate speech can cause, it is my conclusion that ss 18C and 18D of the RDA, interpreted in accordance with the approach in Creek v Cairns Post Pty Ltd,^[49] strike the right balance between freedom of speech and the right to pursue one’s own version of self-fulfilment in a tolerant and respectful society.

Bibliography

A  Articles/Books/Reports

Australian Human Rights Commission, ‘Amendments to Part IIA, Racial Discrimination Act’ (2014)

Baker, Edwin C, ‘Harm, Liberty, and Free Speech’ (1997) 70 Southern California Law Review 979

Bannister, Judith, ‘It’s Not What You Say But the Way That You Say It: Australian Hate Speech Laws and the Exemption of “Reasonable” Expression’ (2008) 36 Florida State University Law Review 23

Bolt, Andrew, ‘White fellas in the black’, Herald Sun (Melbourne), 21 August 2009.

Brandis, George, ‘Section 18C has no place in a society that values freedom of expression’, The Australian (Sydney), 30 September 2011, 12.

Brown, Alex, Hate Speech Law: A Philosophical Examination (Routledge, 2015)

Castan Centre for Human Rights Law, ‘Submission on the repeal of section 18C of the Racial Discrimination Act’ (2014)

Cohen-Almagor, Raphael, Speech, Media and Ethics: The Limits of Free Expression (Palgrave Macmillan, 2^nd ed, 2005)

Dalton, Harlon L, ‘“Disgust” and Punishment’ (1987) Yale Law Journal 881

DeCew, Judith Wagner, ‘Free Speech and Offensive Expression’ in Freedom of Speech, ed Ellen Frankel Paul; Fred D Miller, Jr; and Jefrrey Paul (Cambridge University Press, 2004) 81

Dworkin, Ronald, Forward, in Extreme Speech and Democracy, ed Ivan Hare and James (Oxford University Press, 2009) v–ix.

Feinberg, Joel, The Moral Limits of the Criminal Law: Harm to Others (Oxford University Press, 1985)

——, The Moral Limits of the Criminal Law: Offense to Others (Oxford University Press, 1985)

Fish, Stanley, There’s No Such Thing as Free Speech…and It’s a Good Thing, Too (Oxford University Press, 1994)

Gelber, Katherine and Adrienne Stone, Hate Speech and Freedom of Speech in Australia (Federation Press, 2007)

Human Rights Law Centre, ‘Fact Sheet: Australia’s Racial Vilification Laws’ < http://hrlc.org.au/wp-content/uploads/2014/03/InformationPaperRacialVili....

Jessup, Brad, 'Five years on: A critical evaluation of the Racial Hatred Act 1995' (2001) 6 Deakin Law Review 93

Lawrence, Charles R, ‘If He Hollers Let Him Go: Regulating Racist Speech on Campus’ [1990] Duke Law Journal 431

Liberty Victoria, ‘Exposure Draft: Proposed Changes to the Racial Discrimination Act’ (2014)

Mahoney, Kathleen, 'Hate Vilification Legislation and Freedom of Expression: Where is the Balance?' (1994) 1 Australian Journal of Human Rights 353

McNamara, Luke, 'The Merits of Racial Hatred Laws: Beyond Free Speech' (1995) 4 Griffith Law Review 29

——, Regulating Racism: Racial Vilification Laws in Australia (Federation Press, 2002)

—— and Tasmin Solomon, ‘The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?’ (1996) 18 Adelaide Law Review 259

Meagher, Dan, ‘So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia’ (2004) Federal Law Review 225

——, ‘So Far No Good: The Regulatory Failure of Criminal Racial Vilification Laws in Australia’ (2006) 17 Public Law Review 209

Mill, David van, ‘Freedom of Speech’, The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), ed Edward N. Zalta <http://plato.stanford.edu/archives/spr2015/entries/freedom-speech/>.

Mill, John Stewart, On Liberty (Yale University Press, 2003)

Stone, Adrienne ‘The Ironic Aftermath of Eatock v Bolt’ (2015) 38 Melbourne University Law Review 926

Soutphommasane, Tim, Freedom of Speech and Australia’s Racial Discrimination Act (PEN Melbourne, 2014)

Tallentyre, S G, The Friends of Voltaire (Smith, Elder & Co, 1906)

Waldon, Jeremy, The Harm in Hate Speech (Harvard University Press, 2009)

B  Cases

Abrams v United States 250 US 616 (1919)

Australian Capital Television v Commonwealth (1992) 117 CLR 106

Creek v Cairns Post Pty Ltd (2001) 112 FCR 352

Eatock v Bolt (2011) 197 FCR 261

Horman v Distribution Group Ltd [2001] FMCA 52

Jones v Scully (2002) 71 ALD 567

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Toben v Jones (2003) 129 FCR 515

C  Legislation

Racial Discrimination Act 1975 (Cth)

Racial Hatred Act 1995 (Cth)

D  Treaties

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)

E  Other

Commonwealth, Parliamentary Debates, Senate, 23 August 1995, 222.

Commonwealth, Parliamentary Debates, Senate, 24 March 2014, 1797.

Prime Minister Tony Abbott, Speech, Canberra, 5 August 2014.

Racial Discrimination Amendment Bill 2014 (Cth).

Spigelman, James, ‘Human Rights Day Oration’ (Speech delivered at Australian Human Rights Commission, Sydney, 10 December 2012)

Triggs, Gillian, ‘The Freedom Wars and the Future of Human Rights in Australia’ (Speech delivered at the National Press Club, Canberra, 9 April 2014)

Appendix

Excerpt from the Racial Discrimination Act 1975 (Cth)

18C  Offensive behaviour because of race, colour or national or ethnic origin

             (1)  It is unlawful for a person to do an act, otherwise than in private, if:

                     (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

                     (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

             (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

                     (a)  causes words, sounds, images or writing to be communicated to the public; or

                     (b)  is done in a public place; or

                     (c)  is done in the sight or hearing of people who are in a public place.

             (3)  In this section:

public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

18D  Exemptions

                   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.

^[1] As is well known, ‘I disapprove of what you say…’ was not, in fact, written by Voltaire, but comes from S G Tallentyre, The Friends of Voltaire (Smith, Elder & Co, 1906) 199.