Tapping into a free speech barney

Whether in matters of spying or racial discrimination, the boundaries of free speech cannot be curtailed without problem.

The decision by The Guardian and the ABC to report the fact that an Australian spy agency was monitoring the phones of the Indonesian president, his wife and a number of senior Indonesian officials, has not pleased – to say the least – a number of conservative commentators.

They argue that The Guardian and the ABC would have been aware that the fallout from these revelations – that came from the American ‘traitor’ Edward Snowden – would have serious implications for the Australia-Indonesia relationship. 

None of them are suggesting that publication has compromised Australia’s national security.  Rather, they argue that the damage to the relationship was the true public interest consideration that The Guardian and the ABC should have considered.

If there has been no national security effect as a result of publication, is it the job of journalism to withhold publication of what is clearly a ‘good’ story on the basis that the political fallout of such reporting will be significant? 

The vitriol of some of the commentators has been startling, given that on other issues they are trenchant advocates for free speech and a free media.  Andrew Bolt, perhaps the fiercest critic of the ABC’s decision to report the phone tapping, sees himself as a free speech martyr.

Bolt lost an action in the Federal Court in September 2011 when he was found to have breached the Racial Discrimination Act in columns he wrote for the Herald Sun in which he suggested that some people claimed Aboriginal descent in order to gain a professional advantage.

Bolt was found to have contravened Section 18C of the Act, which makes unlawful public acts ‘reasonably likely…to offend, insult, humiliate or intimidate’ people on the basis of their ethnicity or race.

At the time, Bolt received overwhelming support for his right to publish from most conservative commentators, from The Australian, from the Institute of Public Affairs and from the then shadow Attorney General George Brandis who made a commitment to repeal or significantly amend Section 18C if the coalition won government.

Senator Brandis is now the Attorney General. A number of ethnic community organisations, including the Arab community, the Greek community and the Chinese community, have joined Jewish community leaders in a campaign to convince Brandis not to amend Section 18C of the Racial Discrimination Act.

They argue that repeal of Section 18C would open the door to unrestricted racial vilification and would send a signal that Australia is prepared to tolerate racism.

Jewish leaders point to the fact that under Section 18C, they were able to bring a successful action that forced Holocaust denier Fredrick Toben to remove Holocaust denial material from his website.

It’s pretty certain that Brandis would not refer to Toben as a free speech martyr nor, as far as I am aware, did any of the Bolt campaigners mount the barricades to support Toben and other racist crackpots who have been found to breach Section 18C of the Act.

I am not suggesting that Andrew Bolt’s ‘offence’ is in any way equivalent to Toben’s. Indeed, I believe the decision in Andrew Bolt’s case was deeply disturbing and Bolt deserved more support than he received from people who may abhor his views and those who believe – as I do – that the columns in question were shoddy pieces of journalism.

Bolt may have offended some Aboriginal people, he may have even caused them to feel humiliated, and there may have been factual inaccuracies in his columns. But the idea that such sins should be the subject of court proceedings and court sanctions should be unconscionable for those who believe in free speech and a free media.

The trouble is that the issue of free speech has become part of the culture wars. Each side in this war supports and advocates for free speech and a free media only when what is being expressed and published is in accord with its views.

This makes it possible for Bolt and other conservatives to rail against The Guardian and the ABC – the ‘far left’ as Bolt describes them – for reporting the phone taps  which on balance, was the right decision, while getting in a lather over the legal limitations to free speech in the Racial Discrimination Act.

In this month’s Atlantic Monthly, the writer and gay activist Jonathan Rauch mounts a case for what he describes as hate speech. He argues that in fact, the freedom of people to hold and express bigoted ideas and hateful speech about gays has actually advanced the cause of gay rights.

“We won in the realm of ideas,” he writes. “Our antagonists – people who spouted speech we believed was deeply offensive…helped us win.”

In essence, Rauch is arguing that the best way to combat bigotry and racism is not by squelching or punishing people who hold and espouse repellent views but by exposing the poverty of their thinking, the absurdity of their claims. 

Brandis should not succumb to pressure from the campaign by some ethnic communities who want Section 18C left untouched for very understandable reasons – because they fear that the repeal of Section 18C will lead to an almost inevitable increase in the publication on websites and blogs and perhaps even in mainstream media of racist and bigoted material.

And it might. But free speech becomes meaningless if it does not include the right to offend and insult and even humiliate, to hold and publish views that people might well find obnoxious.  And allowing lawyers and judges and politicians to decide what constitutes offensive, humiliating and insulting speech is taking us down a slippery slope towards something that smacks of authoritarianism.

So Brandis should stand firm and amend Section 18C of the Racial Discrimination Act. At the same time, it would be a good thing if the issue of free speech was taken out of the culture wars context.

Then perhaps we’d get some consistency from all those conservative commentators who are passionate about free speech and a free media but furious with The Guardian and the ABC for doing what any media company would do in exercising that freedom: report the phone taps story without more than a moment’s hesitation.