Yesterday we looked at the basic argument behind the prohibition on racial vilification in section 18C of the federal Racial Discrimination Act (RDA). That prohibition is followed by section 18D, which provides for exemptions to 18C. Defenders of the RDA insist the exemptions are so broad that only the most egregious cases end up being prosecuted. That may be true, but misses the point that no exemption can make the restriction on free speech in 18C legitimate if it isn’t already so.

The exemptions in 18D are important for another reason. They exempt “anything said or done reasonably and in good faith” in the course of artistic, academic, scientific, or journalistic work (both reporting and commentary, if it’s the expression of a “genuine belief”). There’s also a catch-all “any other genuine purpose in the public interest” exemption.

I’m inclined to agree with 18C defenders that, yes, the 18D exemptions are broad — though not so broad that we were spared the sight of Andrew Bolt’s (very shoddy) journalism being scrutinised by a judge not for defamation but for offence, something that should have made any journalist shiver. But the exemptions lead us to one of the underpinnings of this debate. Despite their broadly-written nature, the exemptions are really about privilege, because aside from artists — not traditionally a profession well-known for its wealth or influence — the people most likely to benefit from 18D are in the media or politics, because they are the ones likely to be engaged in publicly discussing matters of public interest.

And privilege is a key issue that needs to be addressed by any fair-minded opponent of the 18C.

The most fascinating contribution to the RDA debate, in my view, came from an unlikely source: Ewen Jones, the Coalition member for Herbert, who recently said: “I wouldn’t have the faintest idea what it is like to experience racism.”

Jones is the same demographic as many of those who oppose 18C on free speech grounds: white and male (that’s me, too). The people who run News Corporation, which is championing the removal of 18C; the Abbott government, the Institute of Public Affairs, Andrew Bolt and much of the demographic that reads him. As whites, and particularly as white men, usually white men in positions of lesser or greater power compared to both ordinary citizens and to victims of racism, we don’t experience racism. Certainly not in Australia, and even outside Australia, our experience of bigotry of any kind is necessarily different to that of other people. We can be confident even egregious racism won’t damage our careers. We are the beneficiaries of the way our society is structured: we have the economic policies, the social hierarchies, the customs and traditions that suit us in particular, creating an environment in which we can prosper. We can use our position — as a politician, as a media commentator, as a journalist — to respond to racism or bigotry of any kind if we so desire. If we experience any kind of bigotry, we do so from a position of much greater power than most Australians.

Ewen Jones is exactly right. We wouldn’t have the faintest idea what it is like to experience racism. Certainly not the kind that most victims experience.

“The powerful, the wealthy and the influential disproportionately benefit from freedom of speech.”

Moreover, as Racial Discrimination Commissioner Tim Soutphommasane has pointed out, there’s some interesting inconsistency in our approach to banning speech based on causing offence in our parliaments and on our streets:

“Where, one might ask, is the public clamour calling for the repeal of these standing orders that protect politicians and judges from mere offensive language? Why is it acceptable for parliamentarians to object to merely offensive language, but not for others to object to speech that offends, insults, humiliates or intimidates because of their race?And where is the public outrage about all the offensive language provisions that exist in the criminal summary offences legislation that exist in NSW, Queensland, Victoria, South Australia, Tasmania and the Northern Territory? If there is to be such zealous interest in freedom of expression in Australia, surely attention would be properly devoted to summary offence laws that impose fines and possible sentences of community work or imprisonment on the use of merely offensive language.”

Indeed, it’s hard to imagine The Daily Telegraph campaigning to allow people to tell police to f-ck off. And Soutphommasane is correct in suggesting that surely there are bigger free speech battles to be fought — say on defamation laws.

And the inconsistency is far deeper than Soutphommasane suggests. If you’re going to do free speech properly, you have to accept two things: first, you need to be prepared to put up with how others use free speech against you — thus the media tradition of journalists not suing each other. Second, you need to defend speech you disagree with. Indeed, if you’re not prepared to defend speech you disagree with, you’re demonstrably not interested in free speech at all.

But examples of both are prolific. Commercial free-to-air TV broadcasters, who like to invoke free speech whenever regulation of advertising is proposed, have admitted they refuse to air ads they think might alienate powerful advertisers. And News Corp’s interest in free speech only extends to its own and that of those it perceives as allies, no one else. The editor of that doughty defender of free speech The Australian, Chris Mitchell, threatened journalist Julie Posetti with legal action over her coverage of the remarks of a former employee of his. The Australian used Victorian courts to prevent the release of an Office of Police Integrity report highly critical of the newspaper over its pointless “scoop” about anti-terror raids in 2009. That newspaper outed a pseudonymous progressive blogger, and tried to damage his public service career. Andrew Bolt — suddenly thin-skinned about racism — demanded an apology from the ABC over remarks by academic Marcia Langton.

Most of the media didn’t even bother covering the most serious threat to free speech and a free press of recent times — the Gillard government’s data retention proposal. And the IPA, which is usually on the free-speech frontline and which to its credit has criticised draconian laws affecting trade unions, was strangely silent on Gina Rinehart’s litigation against journalists.

But does this invalidate the opposition of such groups to restrictions on free speech? No. One of the persistent problems of being a free speech advocate is that you invariably find yourself in the trenches with people you’d cross the road to avoid. Free speech advocates — or “Panglossian absolutists” as Soutphommasane calls them — will find themselves with a Fredrick Toben on one side and a News Corp editor on the other — deeply unpleasant and inconsistent company, but them’s the breaks.

Moreover, to return to the issue of privilege, it’s true that the powerful, the wealthy and the influential disproportionately benefit from freedom of speech. But they benefit disproportionately from all legal protections, because they have the resources to use the legal system to defend themselves. That problem is one of access to justice, not of rights.

However, inconsistency and inequity points to a crucial reason why the amendment of 18C should be supported: free speech in Australia is in a bad way. Our defamation laws are painfully restrictive. The legal industry issues suppression orders like confetti. Our media outlets are even worried about being dragged before foreign courts — that’s the reason why the latest child molestation allegations about Rolf Harris only made it into print yesterday, not online. We’ve seen ASIO raid a former intelligence officer in an effort to silence his revelations about bugging of the East Timorese cabinet. The Federal Police have admitted they have used telecommunications data to search for whistleblowers talking to journalists and politicians. We have absurd restrictions on things like online discussion of euthanasia, and the government that professes to want to amend the RDA in the name of free speech is planning an internet censorship scheme, the restoration of the ABCC which overrides the right to silence and can conduct secret interrogations, a crackdown on ISPs over filesharing, a trade agreement that would impose draconian copyright burdens on Australians and like the previous government participates in an international mass internet and telecommunications surveillance program that it refuses to even discuss.

Yes, there are bigger battles to be fought, but movement in one area makes it easier to push for reform in other areas and, frankly, you take what you can get given the balance against free speech has so regularly shifted in recent years.

It would, however, help if free speech advocates recognised that there’s a white man’s burden here. Rather than attacking defenders of 18C as overly-emotional wimps terrified of hurt feelings, reform advocates would help their cause by, like Ewen Jones, acknowledging that, by and large, they don’t have a clue what it’s like to be on the receiving end of the treatment that 18C is designed to provide a remedy for, that they don’t understand and likely will never understand what it’s like to endure racial vilification. They’d also help their cause — assuming they’re actually serious about free speech — by being a lot more consistent in their defence of free speech, prosecuting the case for reform in areas much more important than the RDA, like defamation and government surveillance.

Free speech isn’t just for powerful white men.

Peter Fray

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