The Australian government is currently attempting to repeal a section of the Racial Discrimination Act (1975). Since its inception, the Act has courted controversy on the grounds that it impedes free speech. The Act essentially puts a legal framework around racial discrimination. The current government wants to amend the section which criminalises what it commonly referred to as racial vilification or ‘hate speech’. It will remain illegal to discriminate against someone in action – employment, who can sit where on the bus, etc. – but the repeal will prevent prosecution against race-based speech which is defined as discriminatory.
Not surprisingly, this is an issue that divides.
There has been a lot of discussion in the past week or so, and usually I feel little compulsion to write about topics that are being so heavily covered by others elsewhere. However, I have been struck by the stunning over-simplification of the issues. It appears that you are apparently either in favour of free-speech, or you aren’t. People seem to be wilfully ignorant of the reality that ethical principles or human rights do not always sit comfortably with one another.
In principle, I am a vehement supporter of free speech, but in practice I am aware that freedom of speech is only attainable when we come from a neutral start point. But we don't ever come from a neutral start point - some people's speech has more power than others. So while free speech is a nice idea, so long as it's more free for some than others, then it is inequitable. Here is where I am faced with a dilemma: I am in favour of free speech but I am opposed to inequality.
If we can accept as true that some people have more freedom of expression than others, it then raises the question of what one privileges more: the right to 'free' speech, or the right to be free from oppression (because bigotry coming from Murdoch and guiding the political system does lead to oppression). I'm fine for people to have their own values on this – I certainly do. I readily declare that I won't tolerate bigotry at the expense of another's discomfort even though having to contain one's bigotry may make the bigot uncomfortable.
A few years ago, in a first year sociology course I was teaching, a student had a Swastika on her folder. She had extreme right-wing views and was opposed to migration and in favour of a white Australia. Certainly, she was entitled to these views, but I had to have a discussion with her about how we manage this in class, I did not want her to feel oppressed; however, I did not want the other 25 students to feel oppressed either. Some students had come to Australia as refugees, and it is more than probable they already felt out-of-place on a university campus without the added dimension of having a student declare that they were not entitled to their place in the room.
Likewise, I teach a course on the sociology of drug use. In the first class, I explain to students that while I encourage open discussion, words such as ‘junkie’, ‘addict’, ‘prostitute’ or ‘whore’ will not be tolerated. Certainly, this impinges free speech, but the impact of not being allowed to use the language is almost certainly less than the impact of being the recipient of such discriminatory language.
I am not uncomfortable curtailing free speech and this is not because I am against libertarianism; rather, because I am a supporter of it.
If I were to allow discriminatory language in my classroom, I would be diminishing the liberty of some students to feel as equal in my classroom as others. In turn, I would be limiting their capacity to enact their right to free speech. Friere has pointed out that to do nothing in the face of oppression is not remaining neutral, but siding with the powerful. Inaction is action. Not intervening in language that offends is allowing it.
Those arguing that classical liberalism rejects the notion of the state interfering in individual liberties are overlooking the very significant qualification John Stuart Mill made: liberty can rightfully be intruded upon at the point at which it negatively impacts upon another.
Presumably, those in favour of repealing the current legislation in the name of free speech hold close the notion that language is power. The blanket rejection of any impingement on free speech reflects a view that curtailing freedom of expression is a form of oppression. And this is true. However, it is equally true that when those with power use language to further diminish those without power, we see another form of oppression. So the argument that free speech should not be curtailed because it is oppressive lacks nous. The actual argument is that one form of oppression is acceptable and another is not.
When you have not belonged to a group whose rights have been abrogated by other people’s words, it is easy to suggest that words should not hurt. When our mainstream media privileges the voices of the white middle-class, we see policy and social norms developed in response to this. When our mainstream media normalises bigotry and the state allows this to go without consequence, we are not sending out a message about liberty and freedom of speech, we are modelling discrimination.
So yes we all have rights to liberty, but we do not have the right to harm others and people can be harmed from language. But people shouldn’t be offended by what a bigot says, you say? Perhaps. And maybe they are not. But they are likely to be offended by the flow-on effects that come when bigotry is promoted by the most widely-read journalist in Australia. (I have written previously about the power of language)
Given that the government is not seeking to repeal the whole Act – it will remain illegal to discriminate based on ethnicity – it seems reasonable to presume that most people in favour of the repeal are in favour of it because it offends the principle of free-speech; not because they are in favour of racial discrimination.
I am perplexed at how we can agree that discrimination in action should be governed but discrimination in speech should not. I get stumped at this point in the liberty argument. If we are all free individuals, how far do we go before we accept state intervention? For instance, are those in favour of the amendments to 18c also in favour of legalising violence? If it is okay to be a bigot verbally, may I elect to be a bigot physically? Instead of getting angry and saying something mean to you based on your ethnicity, may I just use my liberty to punch you instead? No? Why not? How do we assess whether physical violence is more harmful than a culture of bigotry?
I don’t think I am being too presumptuous to presume that most of those in favour of repealing 18c on the grounds of individual liberty are going to reject my proposition that criminalising violence impedes my liberty. However, I also don’t think I am being too presumptuous to presume that many who have been oppressed by race-related language would have rather received a punch in the face than live in a country which condones inequality based on ethnicity. So what is actually at play here is an argument about which rights and liberties are of most import.
Having two liberties that do not sit comfortably together is hardly new. I’ve written before about this dilemma. In the US, we see gun owners argue that they have the ‘right’ to own a gun and many would agree. But surely many also agree that children have the right to go to school and be free from the risk of someone undertaking a(nother) massacre with a gun they had the liberty to own. Perhaps most people won’t use their guns to kill school children; but the harm that comes from a school of dead children seems far more significant than the harm which arises from abrogating one’s right to gun ownership. We cannot mask this in an argument about liberty – the actual argument comes down to whether or not you preference gun ownership over school children’s safety. Step away from the safe mask of theoretical principles and speak to the practical reality.
Like the gun debate, the argument about repealing section 18c of the Racial Discrimination Act is only about liberty at its surface. While involvement from the state may not be ideal, I suggest before repealing the Act, we ask those with the power, those whose speech is most free, those who are most offended by the government interference of language, to offer a viable alternative that does not impede one’s right to free speech while simultaneously not impeding racial minorities’ right to feel like an equal citizen. Pretending that free speech is a universal right is naïve. Ignoring the effects of hate speech is negligence. Thinking that we are all equal or that language doesn’t have catastrophic influence is downright moronic.
Free speech is much freer to a particular groups of people. Our Prime Ministerial cabinet is full of white men, and it is white men who own the mainstream media: the people who are arguing in favour of repealing the Act are those whose speech has always been free and who have not faced the daily experience of being oppressed. The structural and systemic inequality in our society means that free speech is a privilege, not a right. When this privilege is applied equally to all members of our community, I will entertain repealing 18c.