The great test of commitment to free speech is whether you will allow it for people you don’t like.
As Noam Chomsky said, “Goebbels was in favor of free speech for views he liked. So was Stalin. If you’re really in favor of free speech, then you’re in favor of freedom of speech for precisely for views you despise. Otherwise, you’re not in favor of free speech.” Notably, Chomsky went on to fail his own test, when he argued for imprisoning people opposed to lockdowns and vaccine mandates, and leaving them to starve to death.
Note, of course, that allowing free speech for people you despise is not the same as platforming it. I might agree that a Nazi is as entitled to free speech as a communist: that doesn’t mean I’m obliged to hand either of them a megaphone.
As it happens, the free speech rights of actual Nazis is the currently subject of perhaps the most significant free speech case before Australia’s High Court in 80 years. In 1951, the Menzies government attempted to outlaw the Communist Party of Australia. Despite the obvious threat of the CPA, hardcore communists who openly admitted they’d have set up death squads if they’d ever gained power, the High Court correctly rebuffed the move. The left, naturally, cheered it on.
Now a group almost as odious as the communists, the National Socialist Network, are facing the same ban as Menzies tried to impose on the CPA. The left, unsurprisingly, outraged. Just as unsurprising is that lettuce-leaf so-called ‘conservatives’ are not only forming a chorus line to defend banning them, but attacking the only tenuous right to free speech Australians have ever had.
That day has finally arrived for one of the court’s worst ideas: 1992’s implied constitutional freedom of political communication.
This doctrine appears nowhere in the written text of the Constitution. It is a judicial creation that changed the balance between parliament and the courts in a way that was never approved by the Australian people.
The implied freedom, therefore, lacks democratic legitimacy. It is also a confused mess.
If a bunch of political LARPers in silly outfits aren’t free to spout their obnoxious nonsense, none of us are free. That is the whole point. Free speech is a negative liberty – freedom from the state shutting you up – not an entitlement to a platform, a cheering crowd, or protection from being called a fuckwit. The moment you start carving out exceptions for people whose views make the political class queasy, you have handed the political class the knife.
Australia has always preferred the paternal version. From the First Fleet to Federation the ruling class assumed it had a God-given brief to keep the hoi polloi in order. The result is a censorship tradition that has smothered books, films, videotapes and now the internet. Labor’s social media ban for under-16s would be dead on arrival under anything resembling a genuine free-speech clause. It sails through here because we have never had one.
Chris Merritt of the Rule of Law Institute recites the usual respectable line about “the right to be free from intimidation”, which is a red herring: Intimidation and incitement have never been protected. They are already crimes. Conflating them with political communication is how you smuggle in viewpoint bans.
Freedom of political communication is a vital liberty. But all rights must be balanced against others.
In which case it is not a vital liberty at all. It is a contingent permission, revocable whenever the political class decides the balance has shifted. That is Stalin’s version, not Mill’s.
Still, Merritt has half a point: the situation as it stands is a mess. But he chickens out of the most obvious solution, at least, obvious to anyone who actually believes in free speech.
Under the Constitution… the protection of rights and the balance between conflicting rights was left to parliament.
And how has that worked out? Section 18C, the eSafety Commissioner, the social media ban, state protest laws written to silence one side and indulge the other. Parliament has spent decades proving it cannot be trusted with the balance, any more than unelected judges. Who should we trust? The people.
That’s the simple way out of this mess. Put a plain-speech amendment to the people:
Parliament shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Thirty-three words that would kill the implied-freedom fiasco, kill the social media ban and force parliament to use the ordinary criminal law against actual intimidation instead of dressing up censorship as ‘balance’. No wonder the elite won’t touch it. They prefer to retain the right to tell the plebs what they will condescend to let us say.
The Nazis outside the High Court this week are repulsive. That is precisely why the principle has to cover them. If it doesn’t, it covers no one: and the people who will discover that first will not be wearing silly armbands. They will be whoever is next on the list.
