Free speech has limits because speech can cause harm.

Without limits, freedom of speech can do more harm than good. Some limits are enforced by law, others are a result of the consequences that can occur for stepping outside of societal norms.

The role of free speech

Freedom of speech is necessary for us to live autonomous lives, we must also recognise that free speech has limits because speech can also cause serious harm.

Speech can invade our privacy, damage our reputations, cause financial loss, and undermine the very reasons why we have free speech in the first place – to protect the dignity and autonomy of individual people. That’s why freedom of speech is a human right, not simply for its own sake, but as a means to protecting other human rights.

On the legal front, there are penalties for false statements about a person’s character, hate speech, discrimination and breaches of government secrecy laws to name but a few examples. Even within the speech that law allows, a personwho brings their company into disrepute may find themselves fired, a business that supports hate speech may find itself boycotted, and mainstream politicians who engage in hate speech can find the electorate abandoning them.

But there are exceptions. Parliamentary privilege allows politicians to say whatever they want within parliament. This is a safeguard allowing extreme freedom of speech for those with a mandate from the public when carrying out their representative duties. Senator Anning used this privilege when he made comments on “the Final Solution” in his maiden speech. Outside of parliament even politicians are subject to laws that limit free speech.

How we balance competing rights

While cultural and political commitments to freedom of speech are strong in Australia, so are commitments to a just and fair society where racism is not tolerated. This can be seen in poll results released during the debate around the government’s push to remove Section 18C of the Racial Discrimination Act.

In an excellent article on the topic, Prof. Andrew Jakubowicz highlights:

  • A Galaxy Poll for the Institute of Public Affairs (IPA) which was campaign to remove S 18C found that 95% of their sample thought freedom of speech was important.
  • Despite this leading introductory question, when they were then asked about removing parts of S 18C less than half of any group within the respondents supported that idea.
  • The group representing people aged 18-24, the digital natives, has the highest support for freedom of speech but the lowest support for watering down laws against hate speech.
  • Other polling showed younger people encountered racism more often. Online hate was mostly seen on Facebook (40%), YouTube (20%) and Twitter (15%).
  • Prof. Jakubowicz concludes that “Digital natives value freedom. But they also want vulnerable people protected and civility enhanced.” He adds that they don’t trust the platforms or the government to do this properly.

Decades of evidence and research show that if you dehumanise specific populations, it leads to real life violence.  That’s the harm an exception to freedom of speech seeks to prevent.

Israel Folau and Homophobia

Australian professional rugby player Israel Folau is fighting for his rugby career after repeatedly writing inflammatory social media posts directed at homosexuals and causing widespread outrage for these comments.

Sport Australia boss Kate Palmer commended Rugby Australia’s strong stance against discrimination and vilification and urged all sports to follow suit. She says Rugby Australia’s plan to tear up Folau’s multimillion-dollar contract is a big step to ensuring safer sporting environments for all Australians.

“Discrimination is unacceptable and cannot be tolerated in any sport or recreation environment, at whatever level,” Ms Palmer said.

“Everyone is entitled to their own views but expressing divisive and discriminatory beliefs is harmful to sport and the broader Australian community.

“When people of influence use their public profiles to demean and discriminate, we cannot allow such divisive comments to go unchecked.

“As a sporting industry, we must stand together and call out against any form of discrimination whether it is based on sexuality, race, gender or disability.”

2GB radio host Alan Jones commented: “we’re on a slippery slope here … it’s got nothing to do with Israel, or rugby, or religion, or homosexuals, or whatever. Where are we in this country on free speech?”

We asked Ginger Gorman Journalist and author of “Troll Hunting” to comment on Alan Jones claim: “His claims are ludicrous – and simply a perpetuation of erroneous feelpinions that the far right is making all over the world in order to justify their bigotry and marginalisation of others. This is hysteria of pecked censorship. But in reality, this isn’t very complicated. Essentially, the same rules should apply online as apply offline. In offline life, no one has absolute free speech. For example, no one can harass you at work, incite racial hatred against you or sexually harass you. No one can say to me that they’ll cut my uterus out and kill my kids in the supermarket. But they can do it online. Why? It doesn’t make any sense. Basically, the same social norms need to apply to online life as they do to offline life. These are not separate realities but one and the same.”

Law and culture

Federal law stipulates that people can’t be discriminated against on the basis of sexual orientation, gender identity and intersex status. It stops short, however, of making vilification on the basis of sexual orientation, gender identity and intersex status explicitly unlawful as the Human Rights Commission has requested.

NSW, the ACT and Queensland have laws that specifically cover homophobic vilification, while the Northern Territory and Tasmania have laws that cover homophobic harassment.

Culture, however, can be just as important as law. The response by Rugby Australia sends a strong signal that society won’t tolerate this sort of abuse and marginalisation.

Dr Andre Oboler, CEO of the Online Hate Prevention Institute, explains: “The argument this is about religious freedom is spurious. Whatever ones religious belief’s, there is no religious obligation to abuse others. What there is likely to be, in this case, is a contractual obligation to uphold the code’s published values. It’s great to see sporting codes and other having such positive values and applying them to online activity.”