Last month Australia’s Attorney-General said in parliament that “people have the right to be bigots”. The remark came in the context of a debate about the government’s proposed amendments to sections of the country’s Racial Discrimination Act 1975 that deal with racial hate speech.

The relevant provisions of the Act make it unlawful for a person to ‘do an act’, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

This section was added in 1995 and until recently had largely gone unnoticed by the majority of Australians. But the newly elected government made a commitment prior to its election that it would amend the provision (and a defence provision) on the grounds that it unduly restricts free speech – and so a hearty debate has ensued.

The question is: are hate-speech laws, and in particular the Australian provision, overly restrictive of free speech?

The harm in hate speech

In a recent book entitled The Harm in Hate Speech, Oxford legal scholar Jeremy Waldron argues that laws curtailing hate speech are legitimate limitations on free speech in some circumstances. Waldron provides at least two reasons. Firstly, there is a public good in inclusivity:

We are diverse in our ethnicity, our race, our appearance, and our religions. And we are embarked on a grand experiment of living and working together despite these differences. … And each person, each member of each group, should be able to go about his or her business, with the assurance that there will be no need to face hostility, violence, discrimination, or exclusion by others.

Hate speech makes it harder to achieve the kind of society in which we desire to live – a society of racial integration and harmony. Secondly, according to Waldron, hate speech is incompatible with the dignity of those it is directed at:

It aims to besmirch the basics of their reputation, by associating ascriptive characteristics like ethnicity, or race, or religion with conduct or attributes that should disqualify someone from being treated as a member of society in good standing.

The case for racial hate speech laws can also be made in less highfalutin terms: speech that vilifies or demeans people on the basis of their race (a characteristic people don’t choose) can cause serious psychological distress to the individual concerned and to others who share their racial background. Hate speech may embolden other racists to vent their views and fan the embers of racial hatred. Victims of abuse may absorb messages about inferiority, and children growing up in an environment polluted with hate speech may come to believe that certain views about race are normal or acceptable.

A few counter-arguments

One argument against hate speech laws is that they drive racism underground. In the words of Australia’s recently appointed human rights commissioner Tim Wilson (whose remit is ‘freedom’), “One of the reasons we should have deference to freer speech is because bigotry comes from ignorance that does not go away if silenced, it just hides in dark corners and festers.” Silencing the harmful expression of racism – even if the attitudes remain latent – still achieves some good, however. The idea that racism ‘festers’ and becomes worse when silenced is not entirely convincing. Surely what is more likely to increase the prevalence of racist attitudes is a social environment in which those attitudes can be reinforced (or, amongst children, instilled) through public vilification with impunity.

A second and closely related argument is that the best response to racist speech is more speech – speech that argues that it’s wrong. A similar argument was made by the 18th century philosopher and politician John Stuart Mill in On Liberty (defending free speech in general):

[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race. … If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

The public interest in openly discussing certain matters, even when it causes offence, is a good reason to generally favour free speech and to be wary of reducing it. However, there are several reasons to think that Mill’s argument isn’t convincing in the context of hate speech. Firstly, a riposte by the victim of racial abuse may do little to undo the harm that has been caused – the psychological distress remains. Secondly, not everyone feels comfortable responding to racial hate speech. Thirdly, some voices are much louder in public debate than others (the power of a popular media pundit to project their views is potentially much greater than that of a minority group subject to hateful speech). Finally, and most importantly, unlike the cases that Mill contemplated, allowing racists free reign in speech does not usually uncover great truths, since racism tends not to be reason-based. A majority of the Supreme Court of Canada said in relation to this:

There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided.

The possibility that some forms of hateful speech could have public value should not be entirely ruled out. These circumstances could be protected by defences in any hate speech legislation.

A third argument is based around a concern about the state regulating speech at all. There is a legitimate worry about politicians deciding what we can and cannot say, and a risk that important debates will be stifled by political correctness. It’s important to note in response to this argument, however, that the state already regulates speech in many ways. For instance, the law of defamation protects your interest in your reputation – if somebody propagates lies about you and this causes harm (e.g. to your career), you can sue. More trivial examples include our inability to make terrorist-related jokes in airports (probably justified in order to ensure public calm and avoid sending law enforcement agencies down dead-ends) or even to shout obscenities in public or abuse police officers. Most people aren’t seriously concerned about these kinds of restrictions; they minimise real harms without imposing disproportionate limitations on the kinds of speech that we consider valuable.

Whilst we should be wary of going too far, this argument shouldn’t turn us off all regulation. Free speech isn’t an all or nothing affair. This argument draws most of its power from a slippery slope fallacy – it assumes that having laws restricting hate speech will inevitably result in further, unjustifiable, restrictions later on. But this slide is not inevitable. Many countries have achieved an appropriate middle-ground where hate speech is regulated whilst still having ample freedom to discuss social and political issues. These countries include Denmark, New Zealand, the United Kingdom, Ireland and Norway.

Why the proposed changes?

The impetus for the proposed changes in Australia was a Federal Court case in 2011 against journalist Andrew Bolt, whose employer (News Ltd) was forced to publish a corrective notice and pay the legal costs of applicants who successfully argued that two articles written by Mr Bolt violated the hate-speech provision. (The articles can be found in an appendix to the court decision here.)

The articles suggested that a number of fair-skinned Aboriginal people chose to identify as Aboriginal in order to receive career opportunities and other benefits. Mr Bolt named specific individuals with a public profile that he considered exemplified this “trend”.

In and of itself, the question of accessibility to opportunities and benefits is an important issue that is deserving of debate, even vigorous debate that offends. It was not the topic that landed Mr Bolt in trouble, however – it was his tone and factual inaccuracies. As Justice Bromberg wrote:

It is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification including challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and HWT [his employer] to have contravened s 18C simply because the Newspaper Articles dealt with subject matter of that kind. I have found a contravention because of the manner in which that subject matter was dealt with.

Justice Bromberg found that Mr Bolt had demonstrated a “lack of care and diligence” through the inclusion of “untruthful facts and the distortion of truth”, coupled with “the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.” It was found that the articles were not written “reasonably and in good faith” in the course of commenting on a matter of public interest (this defence provision will be discussed below).

Mr Bolt’s targeting of named individuals would likely have entitled them to sue for defamation. “The facts in question have not been proven to be true,” Justice Bromberg wrote. “To the contrary,” he continued, “in relation to most of the individuals concerned, the facts … have been substantially proven to be untrue.” (Some had more Aboriginal ancestry than Mr Bolt claimed, none had ‘chosen’ to be Aboriginal for the reasons he implied, and not all of the benefits or opportunities described were reserved for Aboriginals.) In this respect, as the judge himself noted, “The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.”

The individuals named in Mr Bolt’s article were entitled to a remedy. They could have sued him in defamation, for getting the facts wrong. They chose instead to invoke the Racial Discrimination Act. Should this have been possible? It depends – is the current law too broad or not?

Is Australia’s law well-balanced?

Australia’s law, as quoted at the outset, is broadly worded. In particular the legislation states that it is unlawful to “offend” or “insult” someone on the basis of their race. This has been a key concern of those proposing reform. This must be read alongside a limiting provision:

Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

As noted above, Mr Bolt failed because what he wrote was not done “reasonably and in good faith”.

Case law further clarifies the circumstances in which a person will be held to have acted unlawfully. The test consistently applied by the courts, as laid down by Justice Kiefel in Creek v Cairns Post, requires that the speech have “profound and serious effects, not to be likened to mere slights.” It is important to note also that the legislation does not make hate speech a crime (no one can be locked-up as a result of the Act and there is no police involvement). Instead, there are civil remedies for parties who wish to pursue them, for example damages (money) and injunctions (to restrain someone from republishing a racist article, for instance).

Is the law nonetheless too broad?

On balance, yes. The provision is too broad because it is unlawful to “offend” or “insult”, and this is measured by reference to the reaction of the particular group “offended” or “insulted”, not by reference to larger community standards of decency. As such, someone could speak unlawfully without knowing or intending to, or even having been reckless. Although Justice Kiefel’s test requires the speech to be “profound and serious”, the Bolt case gives the impression that this may still not be a sufficiently high bar. Mr Bolt’s articles were undoubtedly offensive, but the most egregious harms were against particular individuals who had other remedies available to them. The articles were not seriously hateful vitriol about any larger racial group. In fact, part of the reason for Mr Bolt’s criticism of some people identifying as Aboriginal was that he believed that focusing on race was divisive. He wrote:

The noble ideal of Australia, that we judge each other by our character and deeds, and not our faith, fortune or fatherland, is breaking down. We’re not yet a nation of tribes, but that’s sure the way we’re heading.

Mr Bolt’s article did raise some important issues for public discussion – the issue of racial identification and the issue of access to opportunities and benefits (particularly those reserved for historically disadvantaged groups). He went about discussing those issues in an unnecessarily inflammatory and inaccurate manner. But the most appropriate outcome would have been an action in defamation from the individuals who suffered the invective of Mr Bolt’s articles on factually incorrect bases.

There is still a place for regulating extremely harmful or strong hate speech. But the law should be changed in two ways. Firstly, the Race Discrimination Commissioner makes a convincing point that it may be helpful to codify (put in legislation) the test of Justice Kiefel that the speech must be “profound and serious”. Secondly, the existing words, which include “offend” and “insult”, should be replaced with others that set the bar at a higher threshold. How much higher the bar needs to be set is a vexed question over which reasonable people will disagree. Something like the wording proposed by the Racial Hatred Bill 1994 (which failed to become law) may provide a reasonable starting point for a revised law (I am not committed to it, however):

A person must not, with the intention of inciting racial hatred against another person or a group of people, do an act, otherwise than in private, if the act: (a) is reasonably likely, in all the circumstances, to incite racial hatred against the other person or group of people; and (b) is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The government’s proposed changes

Whilst some changes may be justified, the government’s proposed amendments to the Act go too far in undoing protections. There are a few problems with the proposals, but here the focus will be on just one: the huge exemption.

Under the proposed legislation, the provision that makes hate speech unlawful will:

not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.

The current law exempts speech in a number of contexts so long as it is done “reasonably and in good faith”. The proposed amendments have no such requirement. Additionally, the exemption protects all speech from the operation of the Act, no matter how intentionally hateful or dishonest, so long as it is on a topic as broadly defined as any “social” or “political” matter. Jonathan Holmes notes:

it would no longer matter how you were publicly discussing a matter – reasonably or unreasonably, accurately or inaccurately, peaceably or hatefully. If the discussion could be shown to be “political, social, cultural, religious, artistic, academic or scientific” – and what on earth might you be discussing that couldn’t be described by one of those adjectives? – the act would not apply.

The proposed legislation could be greatly improved by at least retaining the requirement of reasonableness.

Conclusion

Hate speech laws can be justified. People’s ‘right’ to hold certain views does not extend to causing serious harm to others, unless the harm caused by restricting their speech is greater. The difficulty remains in balancing our interest in free speech with our interest in minimising the expression of racial hatred. Well-drafted hate speech laws make unlawful the most serious forms of hateful speech whilst providing protection for speech that is nonetheless of genuine public value.

Australia’s current law is too broadly worded. The government’s proposed amendments are too broadly worded in the opposite direction.