I agree wholeheartedly with Jonathan Holmes’ article (and his April 4 episode of Media Watch) on Andrew Bolt. There are probably a few essays now floating around expressing a similar sentiment on Bolt’s run-in with the Racial Discrimination Act.
Australia doesn’t have an institutionalised right to free speech (except political speech, as narrowly implied by the electoral provisions of our constitution). However, there is near universal agreement that free speech is a fundamental right. The preamble to the Universal Declaration of Human Rights states, in part:
The advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.
Most of us do acknowledge that speech cannot be completely free. There are privacy rights to consider. There are libel and defamation laws that offer a defence against malicious untruths. There are also security, diplomatic and intellectual property issues that require a degree of secrecy.
Most of us also abhor racially-motivated hate speech. I can support laws against incitement to commit acts of violence or discrimination (e.g. Section 17 of the Racial Discrimination Act), because (though I’m not a lawyer) that offence seems fairly easy to define and has an immediate impact on the safety and opportunities of others. Not so the consequences of speech that is merely “offensive, insulting, humiliating or intimidating”, as outlawed in Section 18C. Those criteria are more than enough to publicly condemn the speaker, but not nearly enough to deserve legal proceedings.
The kinds of acts being outlawed in Section 18C might be vicious, cruel, and stupifyingly inane, but they are not defamation and not incitement, and nobody’s safety or opportunities are compromised by them. Most of us (I hope) would loosely agree that things should be legal unless there is a compelling case to make them otherwise, and I simply don’t believe that case has been made here. The law is not a scalpel we can use to extract cancerous thought – it is a blunt instrument to help prevent tangible wrongdoing.
Andrew Bolt is a true test of our commitment to free speech, because he says almost nothing of value. Any reasonable person would deride almost everything he stands for. His sneers at people of other races and cultures, at the scientific and academic establishment, at anyone else tenuously associated with “the Left”, are worthy of nothing but pity and derision. If he were to engage in defamation or incitement, throw the book at him by all means, but otherwise leave him to his deranged ramblings.
In the general case, Section 18C has clearly not been enforced with much conviction. Bolt and like-minded ideologues have so far gotten away with a great many acts that would seem to be prohibited. If enforcement ever did suddenly become an overwhelming priority, I expect the situation would rapidly descend into farce, with a million bigots mobilised and screeching obscenities into every possible medium. Their White Christmases would all come at once. It would, in other words, backfire spectacularly. The instinct to ban hate speech is motivated by a commendable desire to change minds (or at least to prevent them being perverted by hatred), but the law is exactly the wrong tool for the job.
Free speech is not about saying nice things. We have no need of laws to protect our right to talk about the weather, sports or cooking. Free speech is about protecting those who offend us, because it is precisely this group that is otherwise perpetually in danger of being shut down, or sent underground. Sometimes, the offending remark is itself more enlightened than those offended by it, and so does more good than harm, but not always. Even when the message has no redeeming value whatsoever – even when it demonises the most vulnerable – free speech is about protecting society from itself, while also providing the only useful way to fight back.