This article is a slightly edited version of a paper delivered by Dr Augusto Zimmermann, LLB, LLM, PhD at the Tasmanian launch of No Offence Intended: Why Section 18C is Wrong (Connor Court, 2016), by Joshua Forrester, Lorraine Finlay and Augusto Zimmermann. Dr Zimmermann warns of the chilling effect anti-discrimination laws can have on free speech. Part One of two parts
Although the Australian government has committed itself to holding a plebiscite so that the people will be allowed to decide whether same-sex marriage be legalised, I wonder how this can be achieved when advocates of the traditional view are prevented from expressing their opinions by intolerant activists and anti-free-speech legislation.
Although most of the Australian people might not necessarily agree with the traditional definition of marriage, surely they should at least have the right to hear both sides of the debate. However, behind the veneer of equality and tolerance there lies a movement that accepts no dissent and enforces compliance with heavy and expensive judicial action.
Don’t mess with the constitution: the Archbishop’s case in Tasmania
Take the extraordinary situation involving the Catholic Archbishop of Tasmania, Julian Porteous, who was brought to a commission because he authorised the distribution of a booklet entitled Don’t Mess with Marriage to parents of Catholic school students in sealed envelopes and in churches. In this carefully written booklet the church expresses its utmost respect for the dignity of homosexuals while promoting the goodness of a man-woman marriage and why children are affected if they miss out on a mother and father.
Chris Berg from the Institute of Public Affairs correctly commented: “It’s hard to overstate how moderate this booklet is. It offers no fire or brimstone. It’s gentle and Christian, of the suburban pastoral variety. There’s much expression of sympathy for same-sex attracted people who also want to follow religious teachings that preclude their sexuality. It is a calm explanation of a major position on a prominent political policy issue.”
Archbishop Porteous’ chief accuser, Martine Delany, the Greens candidate for the federal seat of Franklin, took a complaint to the Tasmanian Anti-Discrimination Commissioner, arguing that the booklet “does immeasurable harm to the wellbeing of same-sex couples and their families across Tasmania”. According to her, the booklet’s content breaches a section of Tasmania’s Anti-Discrimination Act that makes it illegal to insult, offend or humiliate a person or group on the basis of a listed attribute. In lodging this complaint Delaney claimed that the language used in the booklet somehow implies that homosexuals engage in criminal activity because the words “messing with kids”, in her own opinion, can be used as “a code for sexual abuse or pedophilia”.
Although Ms Delaney withdrew her complaint apparently for tactical reasons (“My primary reason is the tribunal process is a very long and drawn out process and during that time the message of this booklet is going to continue to be spread,” she told AAP), it is deeply disturbing that a Catholic archbishop was dragged to an anti-discrimination authority for merely expressing a traditional view on the subject that until quite recently was shared by both the major political parties as well as a large segment of the population. This leaves religious organisations open to attack from outsiders and leaves their practices and beliefs unguarded.
If religious organisations can be punished for expressing their traditional views on marriage, family and a child’s right to a father and mother, then I wonder what else they and their followers might be punished for once same-sex marriage is legalised in Australia. Apparently, they will have no right to disagree respectfully or even refuse to celebrate same-sex marriage.
To be fair, former Human Rights Commissioner Tim Wilson has severely criticised the Tasmanian legislation for over-reaching and imposing “soft censorship” on society. States must therefore take extra care to ensure that laws combatting discrimination do not unduly inhibit fundamental rights and freedoms. This is especially so in states with a common law legal tradition. Since the existing Tasmanian legislation sets the harm threshold far too low by prohibiting acts that are reasonably likely to offend, insult or humiliate, the low harm threshold raises serious questions of constitutional validity in terms of the implied freedom of political communication.
Arguably, the operation of existing section 17(1) of the Anti-Discrimination Act 1998 (Tas) impermissibly infringes the freedom of political communication because such a provision cannot be sustained under the Commonwealth Constitution. The terms used in this section – namely “offend, humiliate, intimidate, insult, or ridicule” – are notoriously uncertain and, as such, they directly affect discussions about public morality and political matters.
The undesirable outcome is further aggravated by the fact that the present notion of “being offended” is dangerously emotive. Dr Albert Mohler, President of the Southern Baptist Theological College, recently stated that “desperate straits are no longer required in order for an individual or group to claim the emotional status of offendedness. All that is required is often the vaguest notion of emotional distaste at what another has said, done, proposed, or presented. … Being offended does not necessarily involve any real harm but points instead to the fact that the mere presence of such an argument, image, or symbol evokes an emotional response of offendedness.”
The uncertainty caused by words such as “offend, humiliate, intimidate, insult, or ridicule” creates an undeniable chilling effect not only on established organisations, religious or not, but individuals honestly engaged in well-meaning discussions concerning issues of public morality. To make it worse, under such laws judges are instructed to approach the conduct in question not by community standards but by the standards of the alleged victim group. Testing to the standard of the “reasonable victim” lowers an already minimal harm threshold, adding further imprecision and uncertainty, increasing the section’s potential chilling effect on speech.
Although opinion polls seem to indicate that the majority of Australians support same-sex marriage, you might think there would be no need for the homosexual lobby to attack the liberty of religious communities and freedom of conscience. Do Australians really wish to live in a country where a disagreement of opinion can result in dragging someone before an anti-discrimination board?
Writing for The Australian newspaper, columnist Angela Shanahan correctly states: “If people … are forced to appear before an anti-discrimination commission … this is a threat to one of Australia’s greatest freedoms, the right to free speech. This is a major disincentive to people making a contribution to debate across Australia. Anti-discrimination bodies should not be used as star chambers by those who simply don’t like what someone else says.”
Benefits of free speech
Free speech constitutes a core principle of every functional democracy, and it is important to remember that every totalitarian regime restricts speech as a matter of course. In contrast, democracy implies the free exchange of ideas so that both good and bad ideas ought to be allowed and encouraged. This principle is essential to a well-functioning democracy since open discourse is more conductive to discovering the truth than is government selection of what the public hears. Free statement of personal beliefs and feelings is an important aspect of individual autonomy.
From a democratic perspective free speech does not disadvantage minority groups nor does it favour those with more power. To the contrary, political elites may feel particularly tempted to limit and restrict free speech and the media, if such a restriction serves their narrow interests. Those interests might be “the retention and accumulation of power and the financial advantage it brings”. Therefore free speech is essential to protect democracy itself.
As Wayne Grudem, Professor of Theology and Biblical Studies at Phoenix Seminary, Phoenix, Arizona, reminds us: ‘Without freedom of speech … rulers could suppress any criticism of their actions and prohibit opposing candidates or any critics from being able to express their views in public. Then a true democracy would cease to exist in that society.”
Nobody denies the harm of hate speech, but speech rights are most necessary for the weak, not the powerful. Tim Wilson recently stated: “It makes a foolish assumption that free speech favours those with power. Anyone who has studied a skerrick of history knows that protecting free speech is about giving voice to the powerless against the majority and established interests.”
Since power corrupts and government power tends to naturally corrupt, if a society safeguards freedom of speech, its government becomes far more accountable to the people. Freedom of speech allows people to speak out and criticise the government when they think it is going awry. Consequently, freedom of speech ought to be viewed as a fundamental mechanism against the concentration of power.
Naturally, absolute free speech under all circumstances can never be a possibility. There are demonstrable exceptions whereby reasonable limits to speech may provide greater service to freedom than open discourse. Within the boundaries of speech that should enjoy some protection, certain limited categories of speech have lower value, most notably sexually explicit speech that falls short of obscenity. Accordingly, the government may permit such things as a ban on some words on daytime radio, but it should not sustain any general prohibition of all forms of speech simply because they are taken to be offensive. Further, speech can be controlled to some higher degree in time of serious national crisis such as in time of war. Finally, direct acts of violence and direct attacks on the physical integrity of another person should never be tolerated.
Above all, as Professor Grudem points out: “Any speech, in order to be properly restricted by law, needs to directly cause actual harm to another person, as inciting to riot in a crowded theatre would do. In fact, it is exactly the free discussion of differences regarding moral values and principles that is necessary to allow democracy to work these questions out fairly and reasonably in the political process.”
Ultimately, however, democracy requires that citizens be strong enough to tolerate robust expressions of disagreement and personal opposition. That being so, a democratic society may forbid uncivil remarks in formal settings like the courtroom, but citizens should retain the basic right to choose the words that best reflect their own personal feelings, and strong words may better convey to listeners the intensity of feeling than more conventional language. After all, if the principle of freedom of speech does not protect speech that other people find offensive or objectionable, then it is not really freedom of speech at all.
Dr Augusto Zimmermann, LLB, LLM, PhD (Mon.), is Law Reform Commissioner, Law Reform Commission of Western Australia; Professor of Law (adjunct) at the University of Notre Dame Australia, Sydney; Senior Lecturer in Constitutional Law and Legal Theory as well as former Associate Dean (Research) and Director of Postgraduate Research at Murdoch University School of Law; and President of the Western Australian Legal Theory Association (WALTA).
Read the second part of this article here.