Freedom of Speech

Written by Phoebe Lupton, Al Amzi, and Tay Vakeeswaran

Graphic by Abbie Holbrook

CW: discussion of political discrimination, homophobia, racism, and sexism

The idea that feminist activism seeks to silence those who hold differing beliefs is currently receiving more attention. However, the term ‘freedom of speech’ has been used in so many different contexts that it seems to have lost its true meaning. Freedom of speech can be defined as “the legal right to express one’s opinions freely,” which we in Australia and most of the Western world, undeniably have. However, it is important to consider that there are some situations in which freedom of speech has to be restricted.

A Sociological Perspective

I don’t agree with certain kinds of speech, but I will defend to the death the right to say them.

This sentiment has been expressed a lot in the recent discourse around free speech and the social justice movement, where the kinds of speech invariably involve bigotry and even outright fascist ideas.

This attitude towards free speech does seem ideologically sound and even compassionate. After all, you’re just trying to make sure both sides are heard! Surely that’s a good thing?

That is all well and good, but what happens when that speech that is being defended is itself violence? ‘Violence’ here is not used flippantly, and neither is it an exaggeration. Free speech requires power (and oftentimes violence) to be deployed in order to protect that right. The problem is, this power is not dispensed equally. The police protecting some protestors and cracking down on others results in some groups being able to exercise their free speech much more freely than others.

Some types of speech inherently infringe upon and suppresses another party’s rights to free speech. Slurs, epithets and dog-whistle tactics are all ‘allowed’ under free speech, but they clearly target already vulnerable communities, justifying oppression and further marginalising them from broader society. These speeches, by dint of their content, lessens the ability, inclination and reception of an entire other group’s free speech.

Studies by White and Crandall in 2017, in the Journal of Personality and Social Psychology found that free speech is used to justify prejudice and racial biases, and that the more often these ideas are expressed, the more acceptable they are perceived to be. This is why Karl Popper’s concept of the Paradox of Tolerance is so important. It stresses that unconstrained acceptance toward the openly intolerant will result in the tolerant being destroyed, and their tolerance with them. Thus, in order to create a tolerant society, the intolerant must not be tolerated.

This is usually as far as the explanations of Popper’s paradox goes. Yet, he also continues that the intolerant must be allowed to speak, and to have their ideas be dealt with by popular opinion and the mechanisms of society. This is exactly what is happening in many claims of ‘suppression of free speech’. After all, freedom of speech is not freedom from consequences. If the consequences of your free speech are a university dis-inviting you as a speaker, a company firing you or your mates telling you to shut up, well, that’s just them exercising their freedom of speech.

A Legal Perspective

Too many times has derogatory, dangerous or fallacious dialogue been spouted freely online and in the media under the guise of ‘free speech’.  This tried and true defence has been increasingly used to justify the proliferation of xenophobic perspectives. Take, for instance, the marriage equality debate where the No campaign’s television advertisements made little to no reference to marriage equality itself and instead attacked the non-compulsory Safe Schools program. Though many private bodies fact checked and disproved much of what was said in the advertisements, legally, there were very few protections against the propagation of misleading or deceptive information about political rivals during elections.

In our liberal democracy, the need for open political discourse is imperative to the fair operation and administration of our society. In fact, the right to express political opinions is crucial for upholding human rights around the globe. Hence, there are international legal rules protecting this right, such as articles 19 and 20 of the International Covenant on Civil and Political Rights, which has 172 state parties. These articles allow for the unrestricted right to hold opinions and protect the expression of favourable and unpopular ideas alike, but simultaneously carry special responsibilities and restrictions on freedom of expression. These restrictions must be provided by law, and be necessary to ensure there is respect for the rights and reputations of others, as well as the protection of national security, public order, public health or morals. Some of the restrictions are the vilification of people based on race, religion or nationality, and discrimination based on racial, sexual, religious, or social origin grounds, even during times of public emergency. In Australia, the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution under the assumption that access to relevant political information is fundamental to the population making informed political choices. Our Criminal Code Act 1995 protects us against the use of telecommunications carriage services in an intentionally menacing, harassing or offensive manner. The Racial Discrimination Act 1975 further protects from actions that are reasonably likely to offend, insult, humiliate, or intimidate persons based on race, ethnicity, nationality or colour.

Hence, though there is a general right to freedom of speech at an international level, and an implied right to freedom of political communication domestically, there are, and should be, limits on its exercise. Legislators around the world have agreed on the importance of balancing the right to freedom of expression with rights against discrimination. However, currently it seems the discretionary nature of the laws have allowed deeply damaging opinions to be circulated in society. The racialisation of the ‘African gang’ problem in Melbourne has led to increased violence and discrimination against African citizens.  The characterisation of the Safe Schools program as an indoctrination tactic permits the continued bullying of LGBT+ youth, and trivialises the unacceptable suicide rate in the queer* community, which is between 3 and 14 times that of their heterosexual counterparts. The years of misleading information about the treatment and status of asylum seekers have led to the unimaginable suffering of men, women and children, which is paid for with our taxes. Freedom of speech is an invaluable right, but it can no longer be seen as the ultimate restriction of what can and cannot be published. Our media, politicians, and all individuals have a responsibility to understand that words have consequences and it is about time that the law reflects this reality.

There is value in the notion that ‘free speech’ and ‘hate speech’ are mutually exclusive. Feminist activism involves combating said hate speech, given its contribution to physical and non-physical violence against women and other minorities. Therefore, if someone were to express a thought that some deem to be sexist, racist, homophobic, transphobic or otherwise discriminatory, perhaps we could be forgiven for suggesting that such a thought might cause harm.