Using free speech as a weapon

The marriage equality survey and Australian public debate

Katharine Gelber

Law, Arts, culture & society | Australia

27 October 2017

The idea of ‘free speech’ has been weaponised in the Australian marriage equality survey debate, Katharine Gelber writes.

Concerns over freedom of speech have reached a high water mark in Australian public debate. In recent weeks, Australians have been told by former Prime Minister Tony Abbott that the marriage equality survey is actually about free speech, and advocates of a ‘no’ vote in the survey have warned that the realisation of marriage equality would place freedom of speech at risk.

Never before has the catch cry of ‘free speech’ been used by so many so often as a catalyst for wider political objectives, many of which have very little to do with free speech at all.

There has been an obvious and clear shift in the profile of ‘free speech’ in public debate, and in its durability and force as a discursive weapon. Those who claim to have ‘free speech’ on their side use the term as a mantra as though saying those words ought to be enough to convince both naysayers and fence-sitters to share their position.

This shift has been interesting in terms of demonstrating the power of words in action – which, by the way, is the strongest argument in my view for the robust protection of free speech. Words do things and can achieve things – they can convince, persuade, judge, shame, persecute, applaud, extol, adjudicate, convict, and much more. They are not simply an expression of opinion.

But those who now wield ‘free speech’ like a metaphorical sword proffer a superficial form of free speech. Ironically, many of those who speak the words ‘free speech’ most often, most loudly, and most vociferously themselves, tend to have little interest in the free speech of others.

More on this: Does religion have a place in the marriage debate?

Most particularly, they have little interest in the free speech of those whom their words can harm. And make no mistake about it – once we recognise and accept that words can do things, then we must logically recognise and accept that just as words can do good things, so they can do bad things as well. They can harm, in concrete and tangible ways.

What leads me to say this about the new free speech warriors? I will give three examples.

Firstly, in 2014 the federal government attempted to amend section 18C of the Racial Discrimination Act – the federal civil law that protects the community against racial vilification. In the context of that unsuccessful attempt at amendment, the Attorney General George Brandis now infamously stated in parliament that people have “a right to be bigots”.

On one level, his statement is correct – no Australian vilification law challenges people’s personally held political views, even bigoted ones (vilification laws only require that people engage in public debate and discussion in ways that do not harm others).

But the Attorney General did not mean that. He was conveying the view that the law had no place in regulating public expressions of bigotry, even where and when those public expressions are capable of the serious public harm that is required for section 18C to be invoked successfully. He suggested that the free speech of bigots ought to be protected. If one accepts – as the research shows – that being targeted by vilification can mean silencing, marginalisation and exclusion from public debate, then logically, this means that he intended that it would be legitimate in a democratic society to compromise the free speech of targets of vilification.

Secondly, Tony Abbott has declared that the ‘real issue’ in the survey is freedom of speech and that a ‘yes’ vote will have perilous consequences. The veracity of this claim is, however, contestable with others noting that the marriage equality will only have one necessary consequence – that of ensuring same-sex couples can marry.

The ‘no’ campaign has claimed further that in Canada and the United Kingdom, parents lost rights after the legalisation of same-sex marriage, including the right to oppose sex education content in their children’s schools. Yet in Canada, such programs are voluntary and parents can exclude their children if they wish to do so. In the United Kingdom, there is only a minimum requirement that schools encourage respect for LGBTIQ people, which was introduced before same-sex marriage became legalised. The claims of attacks on free speech due to same-sex marriage being legalised therefore have no basis in fact.

More on this: Privacy and the postal plebiscite

Thirdly, in the face of widespread criticism that the marriage equality survey would open the floodgates for hate speech against the LGBTQI community, Prime Minister Malcolm Turnbull expressed a desire that the campaign be undertaken ‘respectfully’, and his government passed the Marriage Law Survey (Additional Safeguards) Act 2017.

This is the anti-vilification law you have when you don’t want an anti-vilification law.

The law says a person must not ‘vilify, intimidate or threaten to cause harm’ to someone on the basis of their views in relation to the survey. However, the law does not define these terms, noting only in the definitions that a broadcaster does not vilify, intimidate or threaten to cause harm merely because it broadcasts or reports on such material.

The law also says a person does not vilify, intimidate or threaten to cause harm just by expressing their views, and the law contains defences for conduct done reasonably and in good faith to report the news, or for satirical, academic or artistic purposes.

Finally, the law requires that a complaint must be approved by the Attorney General in order to proceed – the death knell for any meaningful complaints process.

Genuine free speech should allow everyone to participate in decision-making and debate about issues that materially affect their lives. That is why we have vilification laws – to place a modest limit on how public debate is conducted to ensure that as many people as possible are able to participate, and through that to instantiate democracy.

In the current context, ‘free speech’ has come to mean something else. It has become weaponised as a tool for the powerful to resist social change that challenges their comfortability with, and benefits from, the status quo. This is not what free speech should mean. Free speech should be a means by which all people can speak truth to power, thereby expanding the possibilities and potential of their lives.

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