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Protecting people from speech that hurts feelings is not the role of government

26 April 2014 One Comment

Rather than being pilloried, federal Attorney-General George Brandis deserves praise for attempting to protect and enhance free speech and freedom of public discussion, including the expression of unpopular and un­palatable ideas.

Releasing his draft proposals, Brandis said that the current section 18C of the Racial Discrimination Act had the effect of stifling public discussion: “Those three words — offend, insult, humiliate — describe what has sometimes been called hurt feelings.

Brandis is surely right in arguing that it is not the role of government to ban speech merely because it might hurt the feelings of others.

He is also correct in saying that in the interest of open democracy, people ought to have the right to be bigots.

This especially applies given the political-cultural situation when censorship, via pol­itical correctness and censorious­­ness in general, is coming back with a vengeance.

The sad fact is that these days in Australia, there is such a small constituency among intellectuals (and especially the vast majority of the Left) who are actually in favour of free speech and the free exchange of ideas. Yet surely the intelligentsia should realise that when it comes to the suppression of unpopular and unsavoury ideas, anything that is hunted down, thrives.

Brandis’s free speech arguments attempt to level the playing field by allowing a person’s feelings to be hurt without the need for criminal or other sanctions to be involved. It’s a “sticks and stones philosophy that asks us to harden up a bit when someone lampoons and criticises us, rather than running off to the nearest politically correct apparatchik or symbolic police-person and demand apologies, withdrawal, and compensation.

Free speech is under the hammer from other quarters as well. In opening up free speech by ditching some aspects of anti-­discrimination legislation, defamation laws that are simply based on the truth alone become much more important.

When politicians use parliamentary privilege to make defamatory remarks about people, the public often reacts badly and support for free speech dives. A section of Australia’s citizenry seems to like Clive Palmer for his “fearless ability to say what he is thinking. Arguably Palmer says what he likes because he is so wealthy that the laws of defamation do not seem to influence his behaviour at all. Suing Palmer for a million dollars is like suing you or me for a hundred dollars. For him, it’s not a deterrent.

According to purist civil libertarians, including Fiona Patten from the Australian Sex Party and Robbie Swan of the Eros Foundation, some of the worst infringements against free speech are in an area that is just as sensitive as race, creed and colour. They argue that reform of the censorship laws dealing with sex and sexuality needs to be urgently addressed and for the same ­reasons as Brandis is attempting to overhaul Section 18C of the ­Racial Discrimination Act.

The main censors of sexual free speech are religions and religious politicians. Muslims will say they are offended if someone writes negative statements about the Koran or publishes cartoons lampooning Islam and the prophet Mohammed.

Aboriginal groups claim offence when “secret women’s business is talked about, while fundamentalist Christians claim to be offended when they are confronted with sexualised images or when they see other people “enjoying themselves.

In fact the phrase “offensive to the reasonable adult is repeated over and over again in the Classification Act, the Classification Code and in Australia’s Classification Guidelines. According to Patten and Swan, it’s time we got rid of the words “offence, “offensive and “causing offence to from our statute books.

Anti-censorship civil libertarians maintain that allowing “offence to be part of the framework of legal sanction gives religious extremists and the politically correct movement a platform to pursue the most fanciful beliefs at the expense of free speech and rational thinking. They argue that if we can support a situation where people can be allowed to broadcast unpopular and offensive statements, then why shouldn’t others be allowed to broadcast sexual views that may cause offence or hurt feelings?

When the federal Labor administration in 2010 asked the Australian Law Reform Commission to report on classification and censorship in Australia, they saw that the internet had allowed a diverse range of sexual lifestyles, acts and opinions into the lounge rooms of ordinary Australians, and that the old system of classifying and applying criminal sanctions to otherwise legal sex acts was utterly useless. All it did was limit freedom of expression in the older media.

The ALRC understood this and recommended sweeping reforms — the major one being that what was legal online should be legal offline. This meant allowing people to publish and discuss explicitly sexual material without fear of criminal sanction. Fearing a religious backlash at the last election, federal Labor backed down, accepting a range of smaller reforms.

To his credit, Brandis has so far not squibbed on the important task of opening up freedom of speech around race, religion and gender issues.

Let’s hope that in the coming weeks he is not caught in a pincer between censoriousness and political correctness on one hand and strident civil libertarianism on the other.

The deadline for submissions and responses to the proposed changes to the Racial Discrimination Act is next Wednesday.

Ross Fitzgerald is the author of 36 books, including his memoir ‘My Name is Ross: An Alcoholic’s Journey’.

The Weekend Australian, April 26-27, 2014, INQUIRER, p 22

One Comment »

  • David Watt & Laurence W. Maher said:

    Left’s critics have more avenues to voice displeasure

    ROSS Fitzgerald is spot-on about free speech and moves to stop people suing over their hurt feelings or their religious views (“Brandis is right: protecting people from speech that hurts feelings is not the role of government’’, 26-27/4). You can’t have it both ways. You can’t support free speech and then say “but only this sort of free speech and not that kind’’. It’s all or none

    David Watt, Thomastown, Vic

    ROSS Fitzgerald is right to draw attention to the abandonment of the cause of free speech and dissent by what passes for the Left in Australia.

    The Left’s barrackers for the retention of section 18C of the Racial Discrimination Act have forgotten, if they were ever aware of it, the long history of the use of legislative prohibitions on offensive speech/conduct to oppress political, religious, literary and artistic dissenters, and miscellaneous eccentrics.

    Fitzgerald might have added that one of the many reasons why the ALP is withering on the political vine is that it has become the party of censorship in Australia.

    Laurence W. Maher, Melbourne, Vic

    Letters to the editor, The Australian, April 28, 2014

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