In the name of free speech, extreme beliefs must be aired

A protester holds a placard showing a Palestinian flag alongside a flag of Artsakh (the Armenian name for Nagorno-Karabakh) as students participate in a "Walkout to fight Genocide and Free Palestine" in California.

There have been calls for federal legislation to ban publications by partisans on both sides in the debate over Gaza where those publications do not advocate violence against any person or group but may well be offensive to most members of the Australian community.

It is worth remembering that it is a crime – and always has been at common law – to engage in any incitement to violence against an individual or group in the community, whether or not the incitement is based upon some racial, religious or national characteristic.

As it happens, there is also a specific statutory provision in the commonwealth criminal code that makes it an offence to urge the use of force or violence towards another person or group on the basis of race, religion, nationality or national or ethnic origin.

But legislation that goes further and outlaws the expression of political opinions, no matter how absurd and offensive, is a dangerous restriction on freedom of speech. As American jurist Oliver Wendell Holmes said in a judgment of the US Supreme Court in 1919: “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

Holmes was making the point that once some political opinions are outlawed, there is no reason why many others should not be added to this category, given that there are few political opinions some members of the community do not find offensive or insulting.

This is the problem about section 18C of the existing federal Racial Discrimination Act that makes it unlawful, albeit not a criminal offence, to, among other things, offend or insult groups in the community on the basis of, race, colour or national or ethnic origin.

It was under this provision that proceedings in the Federal Court were taken – successfully – in 2002 against Fredrick Toben, who had posted material on the internet arguing there was serious doubt that the Holocaust had ever occurred. This was an absurd proposition and offensive not only to Jews but to anyone with the least knowledge of modern history.

But that is not a reason to prevent someone expressing this utterly misguided view, which in any event would not be taken seriously by the vast majority of the community. There is some similarity with the denials of the current and all previous Turkish governments that up to a million Armenians were killed in Turkey in 1916.

Fredrick Toben

All the available evidence indicates that that is what happened but it is the subject of vehement denials by past and present Turkish regimes. There is no need to ban this expression of opinion because, as in the case of the Holocaust, the evidence speaks for itself.

There is a link here to the federal government’s Combating Misinformation and Disinformation Bill that was released as a draft last year.

The draft has been withdrawn and will be reissued but its intention remains to enable the Australian Communications and Media Authority to supervise social media platforms, such as Google and Facebook, to prevent the posting of what is described as misinformation and disinformation.

The premise of the bill seems to be that members of the community cannot consider the available evidence on contentious issues and make a judgment for themselves but have to be protected from any view that challenges the conventional wisdom. Some of those views may stretch credulity but Australians have generally had a history of scepticism for political opinions of all kinds.

The view that most people need to be protected from themselves is nothing new. In his 2012 report, which was commissioned by the Gillard government and recommended the establishment of a government body to control the news media, Ray Finkelstein KC said “even armed with full information, people do not necessarily have the means for weighing and evaluating that information”. As to the capacity of citizens to engage in critical reasoning, there is “real doubt as to whether these capacities are present for all, or even most, citizens”.

Julia Gillard

Even apart from the recognition of freedom of speech – however sometimes offensive – as an important value, there is another reason why the denial of individuals or groups should not be suppressed.

This is because it forces those engaged in these utterances out into the open and enables the community to see what their views really are. It has been instructive, for example, to learn who are the supporters of Hamas in the Australian community.

The real test for a belief in freedom of speech comes only when the speech in question is abhorrent to many or almost all members of the community.

Otherwise it is very easy to believe in freedom of speech. But, as already noted, once some political opinions, perhaps extreme but not advocating violence, are made contrary to law there is a precedent for adding to the list. There is a real danger here that freedom of speech might suffer death by a thousand laws.

Michael Sexton’s latest book is Dissenting Opinions.