Free speech and hate speech

Katharine Gelber’s new book Speech Matters: Getting Free Speech Right is for the most part a useful summary of speech laws in Australia, and the issues surrounding them. The key chapters are on using or destroying the flag to make political statements, the speech aspects of anti-terrorist laws, hate speech, demonstrations, political art, and corporate use of litigation against critics.

The few policy disagreements I have with Gelber come I think from our different underlying philosophical positions. Her commitment to free speech is more qualified than mine by social democratic ideas. For example, she supports laws against ‘hate speech’, which I oppose. Her position on this comes from her ideas about an ‘inclusive speech culture’:

[hate speech]’s very purpose is to exclude its targets from participating in the broader deliberative processes required for democracy to happen by rendering them unworthy of participation and limiting the likelihood of others recognising them as legitimate participants in speech.

But Gelber doesn’t show that this is the effect of ‘hate speech’. Hateful comments might intimidate, but they are also spurs to action – most of the ‘victim’ groups in Australian society are vocal in their own defence, and have plenty of other defenders. And as she acknowledges in her book, anti-vilification laws have the effect of giving cranks publicity.

I think hate speech laws also run against the general defence Gelber has of free speech’s role in democratic legitimation. Though she thinks racists and other targets of hate speech laws are oppressors, they often see themselves as victims – this was in part what the One Nation uprising was all about. Free speech is a political safety valve that allows people to let off steam and stay inside the political system.

My own view is that we should have very few laws restricting speech, and instead use norms to regulate the limits of ‘respectable’ political and social commentary. Racist speech should be criticised, condemned, and lampooned, but not banned.

I also don’t see governments withdrawing funding from their critics as a free speech issue (though this is not a major theme in the book). Free speech does not mean that you have a right to be paid to express your views. Rather, government funding of speech raises separate issues of whether this improves debate or other aspects of the political system. Sometimes it does, but it can also be used by governments not to create diverse sources of ideas and commentary but to skew the political culture in favour of its own supporters. It’s neither surprising nor objectionable that new governments often cut funding to their predecessor’s supporters.

If you want your speech capacities to continue unaffacted by changes in government, don’t take their money in the first place.