How not to defend freedom of speech

Miranda Devine may have a legitimate point or two here somewhere. First of all, no one should be intimidated with death threats, harassment, and acts of actual violence (against people or property). It doesn't matter where these come from, they are completely unacceptable in an ordered society. So they should not be used in an attempt to silence anti-gay bigots. Anti-gay bigots should be able to go about their lives peacefully like anyone else who has not actually broken the law.

So far, so good.

Conversely, pace Devine, the rest of us should be free to call them anti-gay bigots ... which is basically what they are. I don't see why we should censor ourselves when confronted by speech or other expression that amounts to anti-gay bigotry.

Devine may have another legitimate point, but it gets hidden among all of her emotive ramblings. The point is simply that most anti-gay, bigoted speech should be legal. I say "most" because we can draw some lines. I have no problem with it being illegal to get on the radio and say, "Gays are vermin, go out and exterminate them." There are some kinds of extreme hate speech that should not be tolerated in an ordered society.

But it should not be illegal to argue against recognising same-sex marriages, or to claim that homosexual acts are sinful, or to advocate the reintroduction of sodomy statutes. If you do any of that, I may consider you an anti-gay bigot, and I'll certainly argue against your position, but I don't want the law to shut you up.

So I'd agree with Devine if she confined herself to arguing for the repeal of any statutory provisions - if such exist - that tend to suppress these kinds of speech. Unfortunately (for her case), she doesn't identify any section of any Act or regulation that has that effect. She complains that, "Opponents of same-sex marriage are being dragged before anti-discrimination tribunals with complaints that are, at times, withdrawn at the 11th hour." However, she gives only one example:

Toowoomba physician David van Gend is their latest target, forced to attend a compulsory mediation on Thursday by the Anti-Discrimination Commission Queensland over an article he wrote for Brisbane’s Courier Mail in June.

She discusses the example in such a one-sided and general way that it is difficult to tell what actually happened. What was the wording of the statute under which van Gend was pursued? What did the article in The Courier Mail actually say?

Without a lot more facts, I can't tell whether the relevant legislation really is in a form that should be amended on free speech grounds - possibly not, since the case was not pursued. Perhaps the claim was frivolous; it's hard to tell from the little that Devine offers us about it. Perhaps Devine is correct that there are other such cases, but you have to be suspicious when she gives only one example.

I don't think that we should be using anti-discrimination legislation to pursue people merely for things that they say ... not unless there is some extreme circumstance ("Let's go out and exterminate the Canaanites!") or some defamation of particular individuals. Provisions that intrude on freedom of speech need to be cast in narrow terms, and tribunals should be quick to throw out frivolous or clearly unmeritorious applications.

Devine might have a point, but she writes in a way that makes it hard to analyse the real situation and decide one way or the other.

As with Andrew Bolt, I'd feel more sympathy for Devine's position if she were more consistent about defending freedom of speech and expression. Where was she, after all, when Bill Henson's artistic freedom came under attack not so long ago? Answer: she was there baying for his blood just like her mate, Mr Bolt. Devine is an implausible free speech advocate.

Still, we need to look at the underlying merits of an issue rather than just being put off by unpleasant people. If Devine can show that certain statutes are worded and interpreted in such a way as to chill freedom of speech in certain areas - including the speech of anti-gay bigots - then fine. I'll support what she's saying. But she's got to do better than this.