What makes free speech free?

Some conservative politicians, news outlets and think tanks have, for some time, been pushing for the reform or repeal of Section 18C of the Discrimination Act. The Institute of Public Affairs, for example, haspreviously claimed that “freedom of speech in Australia is under attack” because 18C makes it unlawful to offend, insult, humiliate or intimidate a person on the basis of race, colour or ethnicity.
There are a multitude of elements to this debate, well covered in various public outlets. But for me the question that takes centre stage is, “What, exactly, entails free speech?” Proponents of the repeal of 18C base their understanding of free speech entirely on negative freedom — “Nobody ought to prohibit me from saying what I wish to say.” There is, indeed, truth to this understanding of freedom. But, like most societal values, negative freedom is not a lonely island, existing as it does in relationship and tension with other values.

More importantly, we must ask ourselves what freedom actually is. Is it merely negative freedom, that is, freedom from interference or restraint? Or is freedom more than this? After all, we are not free to murder or rape. Why is that? Because deep down we understand that freedom has a positive element, namely that we are free for something. We may not agree on what precisely is the ends for which we are free, but we mostly agree that we are free for beneficial relationships with those around us, hence why the removal of the negative freedom to murder or rape is universally acknowledged in most places.

What, then, is free speech? My belief is that the understanding of free speech held by antagonists of 18C is partial at best. What is our speech free to do? What does free speech work towards? “Free speech” that offends, insults, humiliates or intimidates is not free at all because its result is incongruent with any reasonable account of positive freedom in society, the freedom for social well being.

Even in a purely economic sense, anything that is “free” ought to be without cost. But “free speech” that offends, insults etc. incurs a cost to society in the form of the emotional, relational and/or other damage caused, thus revealing such speech is not “free” at all.

None of this says anything about the lawfulness or otherwise of offensive, insulting, humiliating or intimidating speech on the basis of race, colour or ethnicity — what I have said is purely moral and philosophical. But ought law reflect morality?

Perhaps the most distressing thing for me is the volume of politicians processing Christian faith who are also proponents of 18C’s repeal. Jesus, after all, had much to say about careless and venomous words. Not that this is a reason to make such words unlawful, since the undertones of Christendom would be dissonant. But there are no signs that such a concern forms part of the motives of those Christian brothers and sisters who seek 18C’s end.

Paul’s words to the Galatians are perhaps most appropriate here, even despite the liberty I may be taking with their context:

“For freedom Christ has set us free…” (Gal‬ ‭5:1‬a)

May we indeed live as if we have been set free for freedom, whether in our speech or whatever else.

MCA