Free speech dying in Australia

In many ways the federal government’s proposal for Acma to regulate the content of social media platforms – via the Combatting Misinformation and Disinformation bill – is simply another attempt to restrict freedom of speech by limiting expressions of political opinion. There is nothing new in this.

There are various terms used by critics and regulators to describe the kind of material that they would like to see prohibited on social media and in more traditional forms of publication, including: ‘misinformation’, ‘disinformation’, ‘malinformation’, ‘fake news’ and ‘hate speech’.

Largely, however, these terms do no more than reflect disagreement by politically correct critics and regulators with the view being expressed. And it should be noted at the outset that there has never been any issue about imposing penalties on incitements to violence against individual or groups in the community. This has always been a criminal offence under the common law and an offence under various state statutes. But this kind of conduct is different from expressions of opinion that may be offensive to many, sometimes to almost all, members of the community but that do not advocate any form of action in reliance on those opinions.

In addition to their distaste from all opinions contrary to their own, those who propose restrictions on freedom of speech have a basic distrust of members of the general community because they fear that some of those members might be influenced by those contrary opinions. This fear was reflected in the 2012 report, commissioned by the Gillard government, into the subject of media regulation by former Federal Court judge, Ray Finkelstein.

The report recommended that a government body be established to supervise the news media. The report noted the observation that ‘citizens must have the capacity to engage in debate, in the form of the relevant critical reasoning and speaking skills’ but added that there is ‘real doubt as to whether these capacities are present for all, or even most, citizens’.

It also suggested that ‘even armed with full information, people do not necessarily have the means for weighing and evaluating that information’. Ultimately the report was not implemented at that time but the view that members of the community cannot be left to form their own judgments when confronted with conflicting opinions is still widely held in some quarters.

It is when views that are abhorrent to most members of the community are publicised that the sternest test for freedom of speech occurs. The use of Nazi salutes would fall into this category, being offensive to an overwhelming majority of the community and, of course, particularly to Jews. But, as the American jurist Oliver Wendell Holmes said in a judgment of the US Supreme Court in 1919: ‘All life is an experiment…. While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe’.

Where does banning stop in the case of discredited regimes? What of the hammer and sickle under which millions in the Soviet Union were killed or sent to gulags? Or the Confederate flag under which the Old South fought a war to preserve the institution of slavery? 600,000 lost their lives.

Hate speech and misinformation have often been suggested as targets of section 18C of the federal Racial Discrimination Act, which makes it unlawful to do an act that is reasonably likely to, amongst other things, offend or insult another person or group of persons because of their race, colour or ethnic origin. It is important to note that this kind of legislation is a significant restriction on freedom of speech because it is aimed at expressions of opinion on political and social issues.

It is very different from the law of defamation which allows proceedings to be brought where there has been an allegation of specific misconduct but there is a complete defence to the proceedings if the allegation can be proved to be true. Section 18C does not deal in facts but with opinions and it makes the expression of those opinions unlawful if they fall within its terms.

Those who complain of ‘misinformation’ and ‘hate speech’ are essentially saying that they want opinions contrary to their own to be supressed. As already observed, there is nothing new in this and in the days of the Inquisition people were burnt at the stake because they held dissenting opinions. Those who lit the fires felt entirely justified because, in their view, their own beliefs were the truth and error – or heresy as it was called in the religious context of that time – had no right to exist.

This is the same view of the modern inquisitors. They are no longer able to have dissenters burnt – however much they might like to – but they can subject them to all manner of legal penalties, as well as portraying them as dangers to the well-being of the community.

There was a time when a robust defence of freedom of speech might have been expected from academics and administrators in universities but these bodies are now bastions of political correctness. Currently an associate professor at Melbourne University has to be escorted to and from her lectures by a security guard to avoid harassment by hostile students.

Universities were originally established as places where ideas could be exchanged and challenged. What has been the response of Melbourne University? It has been to set up a procedure for students to complain about courses of which they do not approve. It is not enough that they do not have to attend those courses but in the spirit of the Inquisition, their very existence remains an affront.

Freedom of speech is the starting point for all other political liberties but it is an endangered species here in Australia where it once had a long-established history.

https://www.spectator.com.au/2023/07/free-speech-dying/ ?

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