Free Speech vs Personal Safety Peter O’Brien
https://quadrant.org.au/news-opinions/the-law/free-speech-vs-personal-safety/
“Yes, Jewish Australians – even though you have contributed to this nation since the First Fleet and even though your families and friends are being murdered in Israel, and elsewhere, by the very forces these wielders of free speech are promoting – toughen up.”
Free speech has gotten a bit of a run recently, following, inter alia, the Glastonbury kerfuffle and the Wassim Haddad ruling.
Our esteemed editor in chief, Rebecca Weisser, has a powerful piece in the Spectator about Glastonbury, the appalling behaviour of some of the performers, and the crass stupidity of the BBC in allowing some segments to go to air. She makes some pretty uncontroversial points – indeed, unarguable, in my view. And yet, she attracted a number of unfavourable comments, a couple of which I reproduce below.
John Jacobsen opined:
Rebecca Weisser’s piece reads like someone clutching pearls while the rest of the world’s trying to have an honest convo. Yeah, some stuff said at Glastonbury was intense—but that’s literally what free speech protects: the right to say provocative, uncomfortable things. You don’t have to agree with the artists, but trying to paint a whole music festival as a jihadist warm-up act is just unhinged. Art is messy. Politics is messy. Get over it. This is like the Trumpification of conservatism. Dumbed down into right-wing “woke”.
And Sirtony added:
If you support free speech, and I do, you have to put up with stupid speech that you find offensive. You, of course, are fully entitled to argue about those views and to say why you find them wrong or offensive. Free speech is useless if we only allow those we agree with to speak. As fashions ebb and flow, what else might be banned that you might actually be sympathetic towards. Stop and think before agreeing to many limits on free speech. Our traditional limits have been on the incitement to violence or the classic shouting “fire” in the crowded theatre not the expression of a political idea.
Is chanting “death, death to the IDF” inciting violence? The argument can be made that it is, but seriously does anyone expect any of these idiots to take on the Israeli military; it is performative nonsense.
The aim of this article is to provide a counterpoint to these opinions, but a couple of specific comments before I proceed. Firstly, the performers were undoubtedly trying to turn the festival into a ‘jihadist warm-up’ act, and the organisers allowed them to politicize an artistic event. The pictures shown to air were dominated by Palestinian flags. This was more a political rally than a celebration of what these days passes for music, and as such it had an intended outcome. The BBC facilitated this.
And, Sirtony, you do not have to put up with speech that you find offensive. The right to free speech does not guarantee anyone a platform and it does not protect them from any consequences. All it does is decree that, with some limitations, you cannot be prosecuted for what you say. It does not mean you should suffer no consequences. It does not mean that Ms Weisser must refrain from exercising her own freedom of expression, in the interest of some absolutist view of free speech. It does not mean, for example, that an organisation, such as the ABC, must employ you, regardless of the fact that your views might be repulsive to a large segment of the population.
Adam Creighton, in a recent Australian column, takes the same view as Rebecca’s critics. He points out that conservatives have previously deplored the provisions of Section 18C:
Almost 15 years ago, conservative political forces erupted in fury when columnist Andrew Bolt was convicted of contravening section 18c of the Racial Discrimination Act over a series of newspaper columns that allegedly offended Aboriginal group …
Calls to abolish 18c rang out across the land. From Voltaire to John Stuart Mill, there were a flurry of quotes pointing out that free speech, however odious, was a fundamental human right that should underpin Australian society. If you’re offended, toughen up. The law can’t be based on feelings, the arguments went…
But:
All the arguments in favour of free speech and against 18c were as laudable and correct then as they are now. So-called hate speech laws are infantilising and deny human agency. Inciting violence is a separate matter, dealt with under separate laws with much stricter legal tests.
Yet I won’t be holding my breath for conservative political forces to mount a principled defence of the contemptible preacher Wissam Haddad, who this week was convicted under 18c for making “disparaging imputations about Jewish people” in a series of lectures in Bankstown in 2023.
“Inciting violence is a separate matter, dealt with under separate laws with much stricter legal tests.” And yet, the Jewish community had to resort to civil action because authorities refused to avail themselves of those stricter laws.
I will return to Section 18C of the Racial Discrimination Act shortly, but before I do let me quote from Chris Merritt, arguably our best writer on legal affairs, from the same edition of that paper:
There is, of course, no suggestion that Haddad engaged in criminal conduct. But his case does highlight a gap in the law.
It suggests the true nature of the evolving threat to society has not yet been properly understood, let alone addressed by criminal law reform.
What we are facing is not merely an epidemic of hate speech against Jews, but the normalising of public discourse that creates an imminent risk of violence.
Those responsible are doing so with impunity. There is no law that could be used by police to crack down on those who create an imminent risk of violence.
No society can be expected to tolerate such a clear gap in the law.
The problem is that much of the community, including many politicians, continue to view this as a free-speech issue when it’s really about personal safety.
Just as nobody has a right to shout “fire” in a crowded theatre, nobody should be free to incite an imminent risk of violence against anyone.
Clearly, Merritt sees Haddad’s statements as incitement. He may well view the words of the odious Bob Vylan in the same light. My online comment to this was:
Thank you, Chris. This is a point missed by free speech absolutists. The Israelis understand it. Hence, they didn’t wait until Iran actually had a bomb before acting. The dramatic increase in ‘hate speech’ (a term I normally abhor) against Jews, may not, in every instance amount to a clear case of incitement to violence but they contribute to the ‘enrichment’ process. Britain and France, for example, are close to having weapons grade anti-semitism, if they are not already there.
And, even as I write, news has emerged of another arson attack on a Melbourne synagogue, in which 20 people were having Shabbat dinner, and a mob besieging a Jewish restaurant:
Less than 2km from the synagogue, in a separate incident, a group of about 20 anti-Israel activists targeted Miznon restaurant in Hardware Lane reportedly chanting “death to the IDF”.
“Death to the IDF”. I wonder where they got that from? So, it seems we too have weapons-grade antiSemitism. Sirtony, mentioned above, asked:
Is chanting “death, death to the IDF” inciting violence? The argument can be made that it is, but seriously does anyone expect any of these idiots to take on the Israeli military; it is performative nonsense.
Well, Sirtony, you are right. No-one expects these cowardly scum to take on the IDF, but it seems they have identified a convenient proxy. As did the ‘idiot’ who murdered two Israeli diplomats in Washington DC.
Which brings me back to Section 18C of the Racial Discrimination Act. As Adam Crieghton notes, conservatives uniformly regard this as bad law. It casts a serious pall over free speech, as Andrew Bolt discovered. But to equate the Bolt case with that of Haddad’s is absurd.
Let me re-iterate the basic premise that free speech is the fundamental feature of a vibrant democracy and its acceptance is non-negotiable. But its form is certainly up for debate. We already agree that you can’t baselessly shout fire in a crowded theatre. That’s the easy one. There must be other exceptions which are not covered by defamation laws.
Free speech is essentially about political opinion. And it is underpinned by two imperatives:
♦ That if we outlaw the opinions of those with whom we disagree, we are making a rod for our own backs
and
♦ We need to hear the opinions of the other side in order to counter them, i.e., we must promote a civil discourse.
The key here is the word ‘opinion’.
Contrary to the beliefs of many absolutist free speech defenders, you do not, or should not, have a right to gratuitous personal abuse which is not underpinned by some logical, or even illogical, argument. I am not suggesting you should be prosecuted for this (other than via defamation action), but that aggrieved persons should be able to take whatever action is within their power to counter your attack, including pressuring your employer to sack you.
Slogans such as ‘death, death to the IDF’, are nothing more than rabble-rousing. They are inflammatory but they are not making an argument. Their underpinning logic is only implied, which is dangerous because you can have no control over how your target audience will interpret your words. They do not contribute to a civil discourse. That is not to say a civil discourse must always be polite. It can, and often will become emotional, and how to determine when it has crossed the line is problematical. I would suggest that a good sign the line has been crossed is use of the word ‘death’.
Back to Adam Creighton. Wisely, he is ‘not holding my breath for conservative political forces to mount a principled defence of the contemptible preacher Wissam Haddad…’.
And why should they? Let’s accept that the Racial Discrimination Act is a well-intentioned law, but that its drafting, particularly 18C, is appalling. It allowed a well-considered, well-argued and temperate opinion of Andrew Bolt to be deep-sixed. But, there must be some cases which fall under 18C that are egregious, cases that would fall under the category of giving serious offence. Calling a certain group of people descendants of ‘pigs and monkeys’, clearly falls within the original intent, and the finding against Haddad is not a perverse unintended consequence of a badly drafted law. Why should conservatives be upset about that? Creighton finishes his piece:
In a multicultural society, individuals will disagree and even hate each other for despicable reasons. Litigating over hurt feelings is a shocking waste of resources. The bottom line is, as a society, we need to toughen up.
Yes, Jewish Australians – even though you have contributed to this nation since the First Fleet and even though your families and friends are being murdered in Israel, and elsewhere, by the very forces these wielders of free speech are promoting – toughen up.
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