A First Amendment for Australia

http://www.nytimes.com/2015/01/21/opinion/a-first-amendment-for-australia.html

Version 0 of 1.

Outside of America, we’re all hypocrites when it comes to free speech.

I’ve lived in the United States and I am a lifelong admirer of it, not least because Americans are so committed to free speech that they will defend neo-Nazis’ right to march in public. That’s challenging, particularly for a grandchild of Holocaust survivors like me, but free speech is the lifeblood of a vibrant democracy.

In my native Australia, though, we have no bill of rights and no explicit, constitutionally protected right to free speech. Not until the late 1990s did the High Court finally find an implied right of political communication in the Constitution.

That right is limited, and allows all kinds of restrictions that would be unconstitutional in the United States. In Australia, hate speech is specifically banned under section 18C of the 1975 Racial Discrimination Act. This provision makes it unlawful to “offend, insult, humiliate or intimidate” a person or group on the basis of their “race, colour or national or ethnic origin.”

Section 18C became a major political issue in 2011 when a court ruled unlawful two newspaper articles by a conservative columnist named Andrew Bolt, in which he argued that light-skinned Aborigines chose to identify as Aboriginal for personal gain, dismissing their deeply held cultural identity as indigenous Australians. Mr. Bolt should have been mercilessly ridiculed for these odious views. Instead, he is regarded by many as a free speech martyr because he was prosecuted for causing offense.

Then, last year, the government made a push to effectively repeal 18C. But its effort was botched through a combination of overreach, misreading the public mood and lack of community consultation.

It looked as if 18C was here to stay.

The political culture surrounding free speech is fundamentally different outside America. As the judge in the Bolt case wrote: “European and Australian approaches are based on different traditions including a greater deference to political authority.”

I find that when I write for an Australian audience, I need to go back to first principles — to explain that there is not, and should not be, a right to not be offended; to point out that the correct response to racial slurs and Holocaust denial is ridicule, not censorship; to say that free speech means nothing if it protects only speech we find innocuous.

Americans need no such reminders; these are axioms, not points of contention. Australia, however, was not born in revolution, with fiery speeches and Federalist Papers about freedom and democracy.

Ours has been a fitful, anxious, tepid separation from England, like a fawn taking first steps, hoping for its mother’s encouragement. England never adopted a bill of rights, so why should we? The Union Jack still defaces our flag.

Australia’s jurisprudence rests on the idea that hate speech harms democracy by discouraging the victims of vilification from participating in public life. This is piffle. Anti-Semitism isn’t banned in the United States, for instance, but American Jews remain fully engaged in the nation’s political and civic life. In contrast, hate speech is banned in France, yet Jews there feel persecuted and embattled.

Such flimsy legal reasoning suffices in a country that has no constitutional protections for speech. Judges pay lip service to free speech while making a case for restricting it.

The fallout from the Charlie Hebdo affair may have changed that. The horrific Paris attacks and “Je Suis Charlie” campaign have exposed the hypocrisy of those in Australia who, on one hand, claim to support free speech, and, on the other, would ban Charlie Hebdo by law. Which it effectively would be, under 18C. What couldn’t be done with a Kalashnikov in Paris could be handily achieved by the draconian restrictions of Australia’s statutes.

This has laid bare a fundamental problem in Australia’s polity and mobilized a new movement for reform. Australia’s human rights commissioner, Tim Wilson, has support from members of Parliament to prepare the ground for change.

Australia should not only repeal 18C, but also enact a bill of rights that includes language like America’s First Amendment. Incitement to violence is already covered in the criminal law; all other speech should, with very limited exceptions, remain free from government restriction. If individuals’ reputations are smeared, there is defamation law, but the causing of offense cannot be unlawful in a free society.

However, the reformers must learn from last year’s errors, and make these changes gradually. Politics is the art of the possible. Many supporters of 18C, both in Labor and in minority communities, quietly agree that the current provision is overbroad. Free speech is not a partisan issue; it should transcend politics and become a bedrock principle of our democracy.

In the wake of Charlie Hebdo, we Australians must recognize that free speech is the right from which all others flow. We may be offended by what others say, but we ought to defend to the death their right to say it. The time has come to begin anchoring First Amendment values in Australian political culture.

Gabriel Sassoon is the foreign communications adviser to a deputy speaker of Israel’s Knesset, a political adviser to the Israeli Labor Party and a member of the Australian Labor Party.