Free speech – how far is too far? Professor Patrick Keyzer weighs in

Free speech – how far is too far? Professor Patrick Keyzer weighs in

Free speech – how far is too far? Donald Trump has found out in the last few days, and the intense public shaming he has received is really only a tiny part of what he deserves.  Losing the US presidential election will (hopefully) be part of the punishment.

A criminal investigation into sexual violence that may have been perpetrated by Trump during the filming of ‘The Apprentice’ is warranted.

In Australia, where (fingers crossed) we don’t have any politicians who say or even think the sorts of things that Donald Trump says or thinks, we’ve had lots of discussion about freedom of speech recently.

One catalyst was Andrew Bolt’s breach of s 18C of the Racial Discrimination Act. Reform of s 18C has been a matter of talismanic importance for opinion leaders from the conservative right, and libertarians.

Another catalyst has been the marriage equality plebiscite. The Federal Government’s plan to give millions of dollars to people who oppose marriage equality has attracted condemnation from members of the LGBTI community and their supporters, who are very concerned that the ‘No’ campaign will damage the mental health of LGBTI people, particularly children who are experiencing homophobia in Australian schools.

Professor Patrick Keyzer

Racial discrimination and vilification is a scourge and s 18C needs to be strengthened, not weakened.  Prohibitions against discrimination including vilification on the grounds of sexuality or sexual preference need to be strengthened, not weakened.

Racism and homophobia, like revenge porn and the ‘locker room banter’ of Donald Trump, are varieties of violence, and only incidentally varieties of speech or expression.

We should shift the public debate to the more effective regulation of hatred and violence, whether physical or expressive.

In the last ten years, the rise of social media has allowed people to say whatever they like, and to large numbers of people. In the age of newspapers, the law of defamation allowed us to prevent further publication and extract an apology and even financial compensation from a defamer. Some of these remedies could be provided in the afternoon edition. But we’ve come a very long way from the time when we had afternoon editions of a newspaper.

Social media has created enormous challenges for regulators. How can we stop the hate and the violence?

These days, a parking infringement officer can take a photo of your licence plate and a photo of the relevant parking sign and send that to a computer that automatically gives you a ticket. There is no reason why the same approach couldn’t be taken to trolls on social media.

Facebook is a wonderful thing, but it should still be regulated. It is a business that operates in Australia, so we can regulate it. Parking ticket style regulation of the trolls could be a condition of the licence of social media operators.

No doubt this proposal would be criticised as ‘regulation gone mad’. But isn’t it odd that we have such an effective system of regulation for parking infringements and such an ineffective system for the regulation of hatred and violence?

Do we really need to change s 18C to allow people to be more racist?  Do we really need to offer anti-marriage equality advocates money to fund a campaign of hatred against LGBTI people who are merely seeking equality?

The answer to these questions is ‘no’.  These people are not pointing the way to a more civil society. Racism and homophobia are markers of an uncivil society.

Free speech advocates have correctly argued for the importance of the human right of freedom of expression to the advancement of democracy and liberty over hundreds and even thousands of years of human progress. But speech has always been subject to limitations.

As Justices Deane and Toohey of the High Court have observed, speech should be subjected to whatever is required ‘for the preservation of an ordered society or for the protection and vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society’.

Balancing the right to freedom of expression against other human rights will always be complicated and require careful judgments by parliaments and courts. But there is no need for us to scratch around in the dark for guidance on how to build a civil society. The recipe book for a civil society is the International Covenant on Civil and Political Rights. Australia signed the Covenant in 1972 and should implement it in full.

Speech needs to be regulated, and effectively regulated. Effective regulation is what is needed if we want to avoid hatred and violence becoming an even more prominent feature in our society.

Professor Patrick Keyzer will be speaking at our upcoming Bold Thinking event, ‘Free speech – how far is too far?’.

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Professor Patrick Keyzer

Professor Keyzer is an internationally acknowledged expert in constitutional law and human rights, representing clients in the High Court of Australia and the United Nations Human Rights Committee. He was shortlisted for an Australian Human Rights Award in 2010.