18C was enacted to prevent hate speech. Supporters of its repeal say 18C should go because it inhibits free speech. There are competing priorities to be balanced. Which should prevail? In my view, the answer falls out when two points are made.
Section 18C of the Racial Discrimination Act 1975 makes it unlawful to engage in public conduct that is reasonably likely to offend, insult, humiliate or intimidate a person or group on the basis of race. To offend 18C, the conduct must be done in public, and there are exceptions if the conduct is an artistic work, part of genuine academic, artistic or scientific discourse or is part of a fair and accurate report of an event or matter of public interest: s 18D.
18C was enacted to prevent hate speech. Supporters of its repeal say 18C should go because it inhibits free speech. Understanding where the balance should be struck in my opinion requires consideration of two points.
The first point is that 18C is out to prevent actual harm. Most people accept that, like other forms of bullying, hate speech does do harm. It hurts at the individual level. Perhaps this is hard for the thick-skinned political animals to appreciate, if they have never belonged to a group that feels it starts life from behind. But I think words can do harm, and hate speech actually hurts people and holds some people back. I think most people would also accept that there’s a risk hate speech can do harm at a societal level too, by undermining social cohesion and harmony.
So what are we giving up by legislating to prevent hate speech from harming the vulnerable among us or damaging our social cohesion?
Well, we’re giving up freedom of speech, which we are told is a right or freedom that requires protection (or at least no legal encroachment). But it doesn’t answer the question merely to invoke freedom of speech without further examination. A little more reflection on what we’re giving up is needed.
A few moments’ consideration of the right to freedom of speech reveals that it is not an absolute right. Like many human rights, it intersects with other rights and it has its limits. For example, most would accept that the law of defamation places an appropriate limit on free speech. Similarly, many would say the ban on tobacco advertising is another worthwhile limit on free speech. On the other hand, other kinds of speech serve important purposes in a democratic society. The best example is political communication, which is protected impliedly by our constitution. This protection means that, for example, I can say ‘this government is the worst we’ve ever had, let’s throw them out at the next election’ – or something like it – without ever committing an offence under a valid Australian law. But this is only one kind of speech, and there is no suggestion we have given this freedom up.
The second point is this: accepting that the right to free speech is not absolute, and that not all speech of any kind is inherently worthy of protection, then in order to decide whether a law inhibits free speech too much, we need to work out what types of things we want the freedom to say, and why.
And when I think about what we lose if people can’t engage in public conduct that is reasonably likely to offend, insult, humiliate or intimidate a person or group on the basis of race I really can’t see what the fuss is about. There’s no social benefit to that type of communication. It serves no innate human need (remembering genuine artistic expression is exempt). I mean, what have we lost if a white man can’t use the n-word? Why does he want to? What purpose does it serve for him to be allowed to?
We’re talking about a pretty small, arid patch of freedom. When I weigh losing that against the harm of hate speech, for me, the choice is a no-brainer.