It is strange and unsettling to be in the position where it is possible to be accused of defending racists and neo-Nazis, but so be it.
Tim Soutphommasane, the Federal Race Discrimination Commissioner, has delivered a spirited defence of section 18C of the Racial Discrimination Act, warning that the elimination of section 18C could license racial hatred and could “unleash a darker, even violent side of our humanity which revels in the humiliation of the vulnerable.”
These are serious possibilities and they cannot be dismissed out of hand. There is ample evidence to suggest, not just in terms of history, but in the contemporary world, that there is indeed a darker and violent side to human beings that in the ‘right’ circumstances, can lead to unimaginable evil.
What is disputable, however, is the suggestion that relatively unrestrained free speech can create those ‘right’ circumstances. Despite it having become an accepted cliché, words are not bullets and it is doubtful that free speech was a major contributing factor to, say, the rise of Nazism in Germany or the ethnic cleansing that characterised the conflicts in the former Yugoslavia or the Rwandan genocide.
Of course, as Soutphommasane points out, we do not have unrestrained free speech in Australia, especially when it comes to racism. It is a criminal offence in all Australian jurisdictions to incite racial violence and not even the most emphatic opponents of Section 18C are arguing for any change to these laws.
Mr Soutphommasane was in part responding to his newly appointed fellow commissioner on the Human Rights Commission, Tim Wilson, whose role on the Commission is to defend ‘human rights’ which has been taken to mean, in the main, defending free speech.
Mr Wilson was -- and remains -- a well-known and activist opponent of Section 18C, which makes it an offence under civil law to engage in speech which is likely to “offend, insult, humiliate or intimidate another person or a group of people”.
It was under section 18C that the columnist and blogger Andrew Bolt was found to have committed an offence in three columns he wrote about a group of Aboriginal activists who, he argued, were describing themselves as Aboriginal for personal gain.
Tim Wilson was one of Bolt’s greatest defenders. So too was the then shadow attorney general George Brandis, not to mention then opposition leader Tony Abbott. Indeed, Brandis made a commitment in the immediate aftermath of the Bolt judgment that a coalition government would repeal section 18C of the Racial Discrimination Act.
It is a great pity that it was over the Bolt judgment that Wilson and Brandis made their stand against section 18C, for Bolt of course, is a hero of many Australian conservatives and is considered by many in the coalition government to be a key supporter in the media.
The effect of all this was to transform the debate about free speech and its limits into a battlefront of the so-called culture wars, with the ideological warriors of the right and the left taking positions on the issue based almost entirely on their dislike for each other.
The culture wars have muddied this most fundamental issue. People on the so-called left who have been staunch advocates for free speech were more or less silent when it came to the Bolt case. Bolt committed journalistic sins, but his right to hold and express certain views -- as repugnant as these might have been to some people -- should have been defended. By journalists in particular.
And for the ideological warriors of the right, free speech is great and open government is great but when it comes to holding the Abbott government to account for the secrecy and obfuscations with which it has conducted Operation Sovereign Borders, there is mostly silence.
It would have been much better -- and braver -- had Wilson and Brandis come out in robust support of free speech for the Holocaust denier Fredrick Toben when he was successfully prosecuted under section 18C for the racist garbage that he posted on his website.
In every sense, Toben is a low-life. He is someone who has inflicted pain on Holocaust survivors and their families. He is a racist and an apologist for Hitler and Nazism. He is a virulent anti-Semite. He and his ilk, if there is a hell, will undoubtedly rot there.
Our first instinct may indeed be to silence people like Toben in order to protect those people who are offended and insulted and humiliated by his Holocaust denial.
That is Soutphommasane’s instinct. Who knows, perhaps it explains why neither Wilson nor Brandis came out in defence of Toben’s right to express his repulsive and racist views. Their instinct too, may have been to protect and defend those people whom Toben traduced in such awful fashion.
It was easy for Wilson and Brandis to defend Bolt and paint themselves as great free speech advocates, but what is harder but nevertheless necessary is for them to defend the free speech of the Tobens of this world. That will be the effect, after all, if section 18C is repealed.
As long as they do not incite violence, people with the most repugnant of views will be free to express them -- though of course it is not at all incumbent on journalists to report the views of racists or for editors to give these people a platform on which to express them.
Section 18C ought to be repealed. Feeling insulted or offended or humiliated or even intimidated should not be a basis on which a court should be able to silence anyone.
Sadly, the repeal of section 18C may well embolden some racists as Soutphommasane argues, but it does not follow that racism will, as a result, be given any sort of legitimacy.
Underlying Soutphommasane’s arguments is the view that we must be protected from the racists, that, as he argues, “…we cannot assume that good speech can overcome bad speech.”
I think he is wrong about this. The progress that has been made in combatting racism and homophobia and misogyny has not come as a result of the curtailment of free speech, but in the main, as a result of good speech trumping bad speech.