The privilege, and privileging of, free speech

While freedom of speech is one of the underpinning ideals of any liberal democracy, it is also highly politically charged.  Questions around the limits of those freedoms have recently come under the spotlight in Australia in recent years.  There has been much debate around injurious speech, specifically with regard to free speech, racial vilification legislation and categories of offence prompted by proposed changes to sections of the Commonwealth Racial Discrimination Act (1975) (the Act).  These debates have been further inflamed in public discourse through the attachment that certain categories of speech - and certain speech acts - have to particular affective economies of voice and circuits of power and influence. Proposed changes to the Act were first mooted shortly after the successful case brought to the Federal Court in 2011 against conservative print columnist Andrew Bolt on the grounds of racial vilification for a series of articles in which he called into question the ‘genuineness’ of a group of “fair skinned Aboriginal people” (Federal Court of Australia, 2011).  Section 18(C) of the Act provides legal remedy to the uneven distribution of power where certain speech acts can have serious and disproportionate negative impacts on minority groups or individuals based on reference to race, colour, religious or ethnic origin (Commonwealth of Australia, 1975).  Without going into the details of the case, and setting aside the parallel conversation about settler-indigenous and race relations the country, the case reignited public and political debate on the appropriate limits (if any) on free speech.

Contrary to the popular prevailing view that the Act makes it unlawful to offend someone on the basis of their race, ethnicity or religion, Section 18(D) provides a number of exemptions which makes some forms of speech legally permissible - including racial vilification - within certain limits.  The language used in this section of the Act specifically connects the category of speech to an affective register of voice in granting exemptions, including references to the terms ‘in good faith’, of ‘genuine belief’, ‘reasonably’ and in a ‘fair’ manner (Commonwealth of Australia, 1975: Section 18D).  Beyond a rights-based approach to the limits and freedoms of speech, the 18(D) exemption takes into consideration the tone and mode of address in determining whether a particular speech act is deemed unlawful.  The exemption recognises this affective nature of speech and the interrelationship between intention (of speech) and intensity (of affect) in constituting what speech means and what speech does through its affective flows.  These terms also connect the social nature of speech to the exercise of power.  Words have symbolic and signifying functions, but also circulate as social currency within a system of power relations where the struggle over the terms and limits of speech are continually negotiated.  Injurious speech (following Butler) frames speech in terms of its trajectory and effects on others:  it details a movement from the one who speaks towards the one who is injured, where words - with their embedded and implied intentions and cultural histories - circulate between social actors in different social positions of power.

Justin Clemens (2011: 22) has persuasively argued that the term itself has collapsed as a meaningful political category in Australia:

That Julian Assange and Andrew Bolt agree - or at least pay lip service to the same 'principles' - that is, absolute freedom of speech, open and vigorous debate, and the quest for truth, probably shows that these are now essentially theological terms from which noone is permitted publicly to demur.

Wikileaks publisher Julian Assange and conservative print columnist Andrew Bolt each vigorously support the principle of absolute freedom of speech, at the same time deploying it in radically different way and to different ends.  In defending Wikileaks publication of sensitive classified information, Assange often invokes press freedom and the people’s “right to know” (Flew and Liu, 2011).  This position puts him at odds with those who support the need for hate speech laws, for instance, as he equates any restrictions on free speech with censorship.  In this sense, Assange is somewhat uncomfortably aligned with federal Attorney General George Brandis’ controversial, but predictable, comments in the context of proposed changes to the Racial Discrimination Act: that “people do have the right to be bigots” (Rice, 2013).  Clemens suggests the most notable thing in the debate was that the utterances of these two “antithetical characters” have become indiscernible from each other.  However, while they are antithetical in many ways, both political liberalism (Bolt) and informational liberalism (Assange) reveal the tensions that arise when the category of speech that becomes attached to both ideas of liberty and the individual and - more recently - to forms of data or information. Rather than signifying a collapse in the meaning of free speech as Clemens suggests, the dissonance between Bolt and Assange instead reveals what is at stake in these contradictions over the meaning of ‘free speech’, going to the heart of tensions inherent within liberalism itself.

Another revealing aspect that emerged from the repercussions from the case is the way the ‘market of ideas’ came to support an economy of speech that makes no distinction between those in positions of power with those who hold less power.  The free market of ideas - a concept first developed by John Stuart Mill - is an analogy used to describe the way that, in a vibrant public domain where competing ideas are circulated, the truth will naturally emerge.  In a market of ideas that places high value on individual freedom of speech, all speech is said to circulate within a public domain where each idea is valued according to its merits.  According to this argument, bigoted remarks in the public domain are socially regulated through a process of free expression and debate.  Yet the presumption that all ideas are given equal consideration with the strongest ideas emerging does not fully account for the uneven structures of power that condition speech.  As Waleed Aly (2013) pointed out at the time, there is no such thing as ‘free’ speech; there are only different costs.  When speech is attached to this marketplace of ideas some modes of speech are made more valuable – and given more power - than others.  Aly also expressed concern over comments like Senator Brandis’ that appeared to give unconditional support to people’s right to offend, cautioning that “the social regulation of speech places the regulation of speech in the hands of the powerful”.

From this brief account of debates surrounding the extent to which free speech should be circumscribed by considerations of racial offence etc., the limits and contradictions within liberal and democratic traditions are thrown into stark relief.  This complicates any attempt to argue that increased opportunities to speak up and be heard is the defining shift in the post-convergent West.  There is more at stake.

References :

Aly, W. (2013) ‘Free Speech, Vilification and Power: the 2013 PEN Free Voices lecture’.

Public lecture. Retrieved 5 November 2013, from

Clemens, J. (2011) ‘Killer Drones, Dieback and Democracy’, Arena Magazine (115): 22.

Commonwealth of Australia. (1975) The Racial Discrimination Act 1975 (Cth).

Federal Court of Australia (2011) Eatock v Bolt [2011] FCA 1103. File number VID 770 of 2010, 28 September.

Flew, T. and B. R. Liu (2011) ‘Globally Networked Public Spheres? The Australian media reaction to Wikileaks’, Global Media Journal: Australian Edition 5(1): 1-13.

Rice, S. (2013) ‘Race Act Changes are what you get when you Champion Bigotry’, The Conversation, 26 March.