Protecting free speech in the Same Sex Marriage Plebiscite debate

An article in the The Guardian today, “Override hate speech laws to allow marriage equality debate, urges Christian lobby” reports that Lyle Shelton, managing director of the Australian Christian Lobby, has made proposals urging greater protection of free speech for those opposed to the introduction of same sex marriage in the forthcoming Australian plebiscite on the topic.

Of course, the reader will see that the Guardian headline and my summary of the proposals seem quite different. In its support for same sex marriage, the Guardian and those it quotes describe the ACL proposals as follows: the ACL wants to “permanently override anti-discrimination laws”; the ACL is said to need to justify why it wants to “breach anti-hate laws”; the laws in question are designed to “protect Australians from acts of hatred, vilification and incitement”; the ACL has an “intention to run an ugly and discriminatory campaign against marriage equality”.

I think the Guardian has slanted the ACL views unfairly. (Even more unfairly, the Sydney Morning Herald report on the story features a cartoon of an ACL representative complaining that they can’t be expected to make their case “without expressing hatred and bigotry”.) Let me suggest reasons why the ACL proposal, so far as can be ascertained from these press reports, sounds limited, moderate and sensible. 

Hate Speech

One piece of terminology needs to be defined up front. The phrase “hate speech” is commonly used in this debate. In the anti-discrimination area, a law forbidding “hate speech” is designed to make unlawful, in general terms, behaviour which “incites hatred” against a person or group of persons on the basis of a protected characteristic. It is important to note that the “hate” in the short-hand description “hate speech” does not refer to any emotion felt by the speaker; it refers to an emotion which is designed to be generated in the listeners. The law does not punish people feeling a certain way when they say something; in limited areas it does prohibit those who seek to generate hate in others for a person or group of persons on the basis of some characteristic of those persons.

The classic example is race-based hate speech. The NSW Anti Discrimination Act 1977, for example, prohibits “racial vilification” in the following way:

20C Racial vilification unlawful 

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

The Act also prohibits “transgender vilification” (s 38S) and “homosexual vilification” (s 49ZT) in similar terms.

Lyle Shelton in his reported remarks in the Guardian explicitly disclaims any desire to engage in speech of this sort in the plebiscite debate.

Shelton told Fairfax Media those in the no camp were not seeking to say anything bigoted by having the anti-discrimination laws relaxed but wanted to put forward the argument that marriage should only be between a man and a woman.

This puts the matter in a nutshell. Is it an act of unlawful “bigotry” to say that the legal status of marriage should be extended only to a relationship between persons of the opposite sex? In my view, and the view of many others, it is not irrational bigotry or hatred. Agree or not, many of those who oppose same sex marriage offer rational, non-religious, reasons for their stance. The debate can be conducted with civility and respect.

Offensive Speech

So if the ACL are not arguing for a “license for hate speech”, what do they want? What they seem to be arguing for is a way of dealing, not with “hate speech” as defined above, but with what we might call “offensive speech” provisions. There are some provisions in Australian law which go far beyond prohibiting hate speech understood as speech inciting hatred in others, and which make unlawful the mere causing of “offence” to someone. The most obvious of these provisions is the Tasmanian law noted in the article, s 17 of the Anti-Discrimination Act 1998. I have discussed this provision, and the current proceedings involving Archbishop Porteous, in previous posts here and here. In summary, the provisions makes it unlawful to “offend” someone in a way connected with their homosexuality, and the complainant in that case alleges that the Archbishop’s act of circulating to Roman Catholic schools a summary of Roman Catholic teaching on the topic was relevantly “offensive”.

If a Roman Catholic cleric cannot provide the teaching of their church to children who have been sent to church schools, then it seems perfectly plausible that someone going into the public debate on same sex marriage, and opposing it on the basis of their belief that homosexual behaviour is sinful or wrong, would also cause “offence”. Of course it is “offensive”  to be told that some behaviour one enjoys is wrong. And yet time and again in newspapers and social media this happens without people being brought before courts for doing so. Mining companies are told that their new mine is wrong and harmful, Governments are told that the tax system is dreadful, or their asylum policy is awful. A television interviewer is attacked for the way they run an interview. Causing “offence” in the sense of telling someone that one disagrees with their way of doing things is a common part of public discourse, of free speech in a democracy.

The importance of free speech in debate, even where it may cause offence, has been stressed on many occasions. Perhaps one of the most striking examples in recent days was the report of comments of Peter Tatchell, renowned gay activist in the UK, arguing that the recent prosecution of bakers for refusing to supply a cake supporting SSM was wrong as a denial of free speech (even though he fundamentally disagreed with the bakers.) He concludes by saying:

In my view, it is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful, but not against ideas.

There are reasons to think, as I have noted in my most recent comments on the case, that the proceedings against Archbishop Porteous will fail, and in any event that the way that the Tasmanian law is worded contravenes the implied freedom of communication on political matters enjoyed under the Constitution by all citizens. But the mere fact of being caught up in these proceedings would be a deterrent to others to speaking their minds on the important issues involved in the plebiscite debate.

In those circumstances it seems to me perfectly reasonable to suggest that any proposed law allowing the conduct of a plebiscite provide protection for free speech on the topic by explicitly providing that State “offensive speech laws” would not operate in this area. As I say elsewhere, in fact I think such laws should be repealed as bad policy and constitutionally unsound anyway. But an explicit provision in Commonwealth law protecting free debate on the plebiscite issue would make sense in the short term.

Such a law might provide, say, that

“for the purposes of allowing a full and free debate on the issues concerned, arguments presented in good faith against the introduction of same sex marriage shall not be unlawful for that reason alone, under any law of a State or Territory prohibiting the causing of offence, humiliation, intimidation, insult or ridicule on the grounds of sexual orientation or gender identity”.

To be crystal clear, I do not support speech of that nature as a good thing! But unless the law allows a clear space for comment which might be seen that way by some, we cannot have a sensible debate on the important issues concerned. (It should be noted that the terms of s 17 of the Tasmanian law, for example, merely require that someone subjectively be offended etc where a reasonable person would have anticipated such offence. This is a very “low bar” indeed for permitted speech.)

How the UK deals with the issue

The example of UK law is important here. The Public Order Act 1986 (UK) forbids vilification on the grounds of sexual orientation. This is a true “hate speech” law. But s 29J of the Act provides explicit free speech protection even in that context:

29JA Protection of freedom of expression (sexual orientation)

(1) In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.
(2) In this Part, for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred. (emphasis added)

Subsection (2) here was inserted by the Marriage (Same Sex Couples) Act 2013 c. 30 Sch.7(2) para.28, when the UK was introducing same sex marriage.

The UK amendment, which extends to “hate speech” proper, was presumably inserted to completely avoid any argument that debate about the topic of marriage, or sexual conduct or practices, could in some way be cast as engendering “hatred” for same sex attracted persons. In light of that provision it may also be desirable, not (to repeat) to allow true hate speech, but to avoid any doubt and so avoid useless litigation, to explicitly provide that State laws on the topic will not be breached by mere debate on the issues raised by the plebiscite. This will not prevent such laws being used where other types of speech are used which go beyond debate on the issues. But it will prevent vexatious court actions designed to stifle public comment on the serious issues involved.

Conclusion

It is true that the Australian community is deeply divided on the issues surrounding same sex marriage. But in a robust democracy the way to resolve the question as to whether this change to the law should be made, is to have a respectful and honest debate about the issues. Some on both sides of the debate may be offended by arguments that are used on the other side. But laws which prohibit the mere causing of “offence”, or attempts to use “hate speech” laws to shut down the putting of arguments in support of one side or the other, will only restrict that debate. It seems sensible that the Commonwealth Parliament, when enacting laws to allow the plebiscite, also provide protection for the free speech needed for a proper debate.

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