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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Tuesday, October 18, 2011

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of same-sex marriage are being dragged before anti-discrimination tribunals with complaints that are, at times, withdrawn at the 11th hour."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.


Simeon Blatchley said...

Simple respect and common courtesy would prevent someone from using the terms in a derogatory manner. And this is the same Dimitri

Legal Eagle said...

This post is on a gay hate speech case in Canada - it will be interesting to see what the Canadian Supreme Court does with it.

And yes, I agree - people do have freedom of speech (most of the time) to say anti-gay things - subject to my freedom to say that I find them offensive and bigoted!

I do find it irritating when columnists don't give me enough information to make up my own mind - which is why I vastly prefer a well-written blog post to an opinion columist.

I found van Gend's original opinion piece here: http://www.couriermail.com.au/news/opinion/labor-will-create-a-gay-stolen-generation-of-children-forcibly-deprived-of-a-mum-says-dr-david-van-gend/story-e6frerdf-1226083757106.

Apparently the action was brought under the Anti-Discrimination Act (Qld) - not sure what provision? - there's some people saying it was s 12A, but as far as I can work out, there's no such provision.

Russell Blackford said...

Which terms, Simeon? Do you mean anti-gay terms like "queer" or "faggot" or do you mean the use of "gay" as a terms of disparagement (something I find especially annoying)?

Or do you mean terms like "bigot"? Genuine question ... I've been wondering whether, in all honesty, Devine has a further point there somewhere that could be brought out. It's very easy to slip into hypocrisy about this, and I want to resist that. Fact is, I find Devine very annoying, and that's a bias I need to take into account, so I actually want to think about this a bit more.

Russell Blackford said...

Will look at those links, LE. Yes, this is a problem with commentators like Devine. Their op.ed. pieces are often written in a way that appeals to prejudices, and attempts to stir up emotions (which is not entirely out of bounds), while failing to provide us with the facts that we'd need to make up our own minds. The idea seems to be to send off readers feeling angry about something but not necessarily well informed.

This is one reason why I find Devine so annoying. She could reach the conclusions she does, based on her own values (which are very different from mine), and I confess that in itself would cause me a problem with her. But I'd have less of a problem with if she wrote in a way that is less manipulative - if she set out the facts clearly so we could reach our own conclusions based on our own values and our own pre-existing knowledge bases.

Anonymous said...

Ah, the divine Ms DeVicious.

Based on previous experience of her hypocrisy and foolishness (particularly with regard to non-hetero people) I simply can't take anything she says seriously or at face value. Like Mr Bolt, she's an unapologetic partisan hack, seemingly employed by her paper in order to draw commentary and stir shit, as it were, more than to, as she and the Bolt would have us believe, "spark debate" or "speak truth to power" or "fight the forces of Political Correctness" or some other laughable cliche.