Let’s run through a common argument in the free speech wars: you can’t regulate against offence because two people might disagree about what is offensive.
It’s a nonsense argument. It’s nonsense both in a legal sense and in a non-legal sense. But let’s start with some general points: why does the argument exist at all?
Whenever the freedom of speech debate pops up, it is because somebody — again — has said something objectionable for the purposes of profit or personal benefit. Why does the media resist limitations on the freedom of speech? Because their business model depends upon being able to say objectionable things. Why do comedians get so incensed by the topic? Because saying objectionable things gets them instant notoriety. It’s why their arguments are constantly so thin. They are flimsy veneers over a less noble truth: these people want to make more money, so they will resist attempts to prevent that. From top to bottom and from side to side, the most vocal people in this debate are those who benefit the most from letting people publish the most obscene, vulgar, and antisocial material.
For that reason, the freedom of speech is the most poorly understood and most poorly argued of the civil rights. In its barest form, it is a right which privileges the most powerful over the weakest. The man (it’s always a man) who has the greatest access to nationwide platforms to distribute his message will always benefit more from the freedom of speech than the person he humiliates, ridicules, or offends. And the question that arises is always the same: why should we sit back and let that happen?
In this post, I will narrow down on the subjectivity argument. Because people are offended by different things, it is impossible or improper to regulate.
Here is the law of negligence in a nutshell:
Negligence means a failure to exercise care and skill. In an action for negligence, the plaintiff must prove that:
(1) the defendant owed him or her a duty to take reasonable care;
(2) the defendant breached that duty by failing to take reasonable care;
(3) the defendant’s breach of duty caused the injury or damage suffered by the plaintiff; and
(4) the injury or damage suffered was not too remote a consequence of the breach of duty.
But what’s reasonable care? Isn’t that subjective? What one person might think is reasonable, another person might not agree!
Here’s your right to freedom of speech under the Australian Constitution:
Laws burdening communication are valid if they satisfy a two-pronged test:
(1) does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?; and
(2) is the law reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with representative and responsible government?
But what are government or political matters? Isn’t that a bit vague? And who determines whether something is reasonably appropriate and adapted to serve a legitimate end?
Fortunately, the legal system is really, really experienced at dealing with vagaries. Because it is impossible to write legislation which covers every unforeseeable event, there’s a ‘reasonable person test’. Sure, this or that person might be offended or not, but we look to what a reasonable person would find offensive.
More importantly, in Australia, the bar is even higher than that. In Eatock v Bolt, where a News Corp columnist decided to rip into a group of Indigenous people for attention, the Court noted that s 18C of the Racial Discrimination Act wasn’t about people getting upset, it was ‘conduct which has “profound and serious effects, not to be likened to mere slights”’.
Framed differently, offensiveness here is not just about some individual snowflakes getting upset for trivial reasons related to their private emotional instabilities. Offensiveness is about what a rational, reasonable person with ‘characteristics consistent with what might be expected of a member of a free and tolerant society’ would consider to be beyond tolerable behaviour.
So, from a legal perspective, we absolutely can have a legal framework to regulate offensive behaviour without sinking into a quagmire of individual opinions about what is and what is not offensive.
As a general principle, there is no reason why we should not have legislation which created a presumption in favour of people being able to live their lives without somebody offending, insulting, or humiliating them for profit. The legislation is easy to draft:
- It is unlawful to engage in conduct that is reasonably likely to humiliate, ridicule, or offend another person.
- A defence against (1) is that there is a reasonable reason to engage in the conduct.
But we do not even need to go that far. Whenever we arrive in this discussion, we always have a belligerent who knew — who absolutely knew — that they were engaging in offensive conduct and did so deliberately with the purpose of profiting from that conduct. When they engaged in homophobic behaviour, they knew they were going to upset the LGBQ community. When they engaged in racist behaviour, they knew they were going to upset ethnic minorities. When they engaged in sexist behaviour, they knew they were going to upset women. And they did it anyway.
You can always tell the difference between those people who did it deliberately and those who didn’t. Those who didn’t express shock at their behaviour and apologise. This is because they are ordinary, reasonable people. Those who did intend to offend double down on why they have a right to be offensive. Their individual right trumps any social convention which should regulate their behaviour.
It’s this latter, non-legal aspect which should make us think twice about defending the indefensible over freedom of speech. If their only defence is that some magical sky pixie gave them an inalienable right to offend others, we should interrogate them further and disabuse them of this magical, superstitious thinking.
Protect speech which serves some social function. Sometimes, we are going to say things which offend others as part of good social practice. But we can explain why we did it. For example, we offended a religious minority because we were supporting the civil rights of LGBQ couples. We offended a minority on the basis of sexuality because we undertook a scientific experiment in good faith which challenged public conceptions of sexuality. And so on and so forth.
This is not difficult. It’s also not new. But it never gets aired properly because freedom of speech as an unrefined, absolutist concept suits the interests of the powerful and gives licence to profitable antisocial behaviour.