Play ball, not Bolt, in free speech debate

Julian Assange and Jennifer Robinson

October 28, 2011


AAndrew Bolt. Photo: Craig Abraham

It might seem unusual to take a stand for a bloke who has called you a ”patronising, supercilious racist git” when that very same man has just been prosecuted for ”race hate speech” – but the conviction of Andrew Bolt ought to raise alarm bells for all who believe in freedom of expression.

However much you disagree with Bolt, the ”hate speech” law under which he was prosecuted is more offensive than he is.

Bolt was found in violation of the Racial Discrimination Act because his ”offensive” 2009 article accused ”fair-skinned” Aborigines of choosing their racial identity to get certain benefits. It isn’t hard to understand why the subjects of Bolt’s column were offended but many commentators have avoided considering the underlying law because they don’t like Bolt or his views. Even those who move past their own politics to raise legitimate concerns over the precedent set by Bolt’s case have missed the most important point.

Yes, it is problematic that the judge’s decision revolves around whether someone claims to be offended as opposed to whether Bolt knew he would offend the ”ordinary” Australian in the representative group or the ”ordinary” Australian based on ”community standards”. But the real question is whether we want judges in charge of the parameters of public debate – what we can and cannot say – at all.

Bolt was not the subject of defamation proceedings, although he was essentially found guilty of telling untruths. He was instead found guilty of offending people. It is not that the judge got it wrong – Parliament got it wrong.

Democracy depends on the free flow of information and ideas. Opinions must be shared in ”a free and open encounter” because it is the competition between ideas that produces the truth. As Fredrick Siebert explained: ”The true and sound will survive. The false and unsound will be vanquished. Government should keep out of the battle and not weigh the odds in favor of one side or the other.”

The best policy decisions result from robust and uninhibited debate. For this reason, politicians have a privilege denied to the rest of us, aside from fat pensions. They cannot be prosecuted for what they say in Parliament, including hate speech. Why should we accept free political speech for politicians but not for ourselves? After all, it is the debate that starts outside Parliament that drives debate inside it.

Hate speech laws in Australia are a form of censorship, backed by sanction and justified by the perceived need to protect historically persecuted minorities and maintain racial harmony. Leaving aside the empirical question of whether they actually achieve those purposes (the experience in Victoria suggests otherwise), different approaches taken by different governments reveal the danger of putting the state in charge.

In the US, the First Amendment guarantees the right of the Ku Klux Klan and neo-Nazis to march through the streets. The law sanctions speech only if it incites violence. Rather than flourishing, the Klan and neo-Nazis have been withered by the robust criticism that such protections afford their critics.

Commonwealth nations such as Australia, Britain and Canada take a very different approach. This month, the Supreme Court of Canada heard the most significant test of hate speech laws in decades. Bill Whatcott, an anti-gay activist, says he believes that homosexuals spread filth and disease because the Bible says homosexuals are full of ”sin and depravity”. Convicted under hate speech laws and fined $17,500, Whatcott has appealed.

Whatcott ought to win his appeal but many will disagree simply because they disagree with his views.

As one judge reportedly noted during Whatcott’s hearing, if we were serious about banning hate speech then we should have lawyers ”reviewing the scriptures” (the Bible and the Koran are full of religious bigotry and homophobia).

Meanwhile, in Scotland last week a man was jailed for Facebook posts saying fans of the football club Celtic were ”Catholic scumbags” and ”Fenian tattie farmers”.

None of these cases, Bolt’s included, would be prosecuted in the US. In the Bolt case, Justice Mordecai Bromberg explained that we have lesser protections than the US because of a tradition based on ”a greater deference to political authority”. But if ever there were characteristics that could be described as typically Australian, irreverence to authority would have to be one.

People get squeamish when arguing against censorship laws that protect historically persecuted groups. Censorship is fine, they think, as long as it is designed to protect gays and indigenous people. As a former head of the Canadian Civil Liberties Association said in this regard, Canada is ”a pleasantly authoritarian state”. But what about where censorship is aimed at historically persecuted groups?

In much of Europe and Australia, it is unlawful to deny that the Holocaust took place – this is ”acceptable” censorship. But in Turkey it is a crime to assert that the Armenians were subjected to genocide. Imagine if Australia introduced a law prohibiting use of the word ”genocide” in respect of the treatment of indigenous Australians? Many debate whether the term should be used or not but it would cause outrage if our government stymied that debate by making it unlawful.

So what subjects are off limits? What societal ”goods” are worthy of protection through censorship? And who decides? Science says climate change is happening. The United Nations Security Council has deemed it a threat to international peace and security. Why don’t we just introduce a climate change-denial law prohibiting Barnaby Joyce from rubbishing climate change so we can prosecute him and get on with the necessary reforms?

This may sound ridiculous – and Joyce would in any event hide behind the parliamentary privilege, giving him the protection we all deserve – but therein lies the danger of allowing the state to regulate what political speech is acceptable. The law, whether civil or criminal, is a serious business. At its end is the deployment of armed police to imprison people or seize their assets by force. It should never be used to regulate disfavoured views.

Free speech must protect all speech, however offensive. Debates that offend the ”ordinary” or ”typical” Australian are precisely the debates we need. It is precisely when the majority shares a view that it needs to be challenged, because if it is wrong, then we are all imperiled.

Julian Assange is editor-in-chief of WikiLeaks. Jennifer Robinson is a London media and human rights lawyer.

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