On 28 September 2011 Bolt was found to have contravened section 18C of the Racial Discrimination Act.

On 28 September 2011, Andrew Bolt was found to have contravened section 18C of the Racial Discrimination Act. Photo: Justin McManus

Imagine if Alan Jones and  Andrew Bolt could be thrown in prison and charged money for vomiting venomous racist bile in public. Seriously. I don’t mean this in an ‘imagine if you were invisible and could fly’ kind of way. Nor in the sense of: ‘imagine if Ryan Gosling begged for you to be with him but you turned him down in favour of being a lesbian mother with Portia di Rossi.’ I mean this in the sense that [insert sonorous BBC news voice here] the NSW Parliament is conducting an inquiry into racial anti-vilification laws which impose criminal penalties for hate speech. Specifically, section 20D of the NSW Anti-Discrimination Act is for ‘serious racial vilification’ and carries a penalty of $5,500 dollars and 6 months in jail if you’re found to have incited ‘hatred’, ‘serious contempt’ or ‘severe ridicule’  of a person or a group or to have threatened physical harm. Since the law’s inception in 1989 there have been 27 complaints referred to the Director of Public Prosecutions but not one has been prosecuted. The legal requirements are too stringent. The Inquiry may look at revising the requirements to make it easier to sue. [Now stop reading in BBC voice or it will become distracting.]

Already the announcement has sparked the usual Cassandra like murmurings of free speech advocates wringing their hands and making terrible prophecies: Pestilence! Death of democracy! Gagging of political dissidents! Voltaire is quoted with promiscuous glee: I may not like what he has to say, but I’ll defend to the death Alan Jones’ right to call Lebanese people ‘vermin and mongrels’. Democracy needs free speech. And in the free marketplace of ideas, the truth will always triumph.

A similar debate raged last week in England over writer Julie Burchill’s breathtakingly transphobic article in defence of her gob-smackingly transphobic mate Suzanne Moore. Moore made a jibe at ‘Brazilian transvestites’ in an otherwise excellent essay on female anger. In so doing, Moore incurred the wrath of some ‘bullies’ standing up for transgender rights. I don’t want to repeat what Burchill said in defence of Moore, but suffice to say it was so horrendous that the Guardian removed it and released an apology. It was in flagrant breach of their anti-vilification policy. In their ping-pong game of hate, Moore hit back in defence of Burchill saying that she had been censored by ‘humourless, authoritarian morons.’ ‘How has the left ceded the word ‘freedom’ to the right?’ she brayed.

So how do we make sense of this seeming opposition between equality and free speech, especially given that we pinko lefty types tend to cherish both and have historically stood up for both. Perhaps it’s best to start with the fact that freedom of speech is not an unqualified right or an unqualified good. Your ‘freedom to’ say what you want can’t come at the expense of other people’s ‘freedom from’ fear, violence or hatred which may be incited by what you say. The left hasn’t given up on freedom. We just want to stretch it to include the most vulnerable members of our community.

Studies have consistently shown that hate speech is not just words, but that it usually precedes an attack. Sociologists Rowan Savage and Gordon Allport describe it as part of a continuum of violence where racial vilification can slide easily into violence or genocide.  Hate speech makes violence possible and is also itself a form of violence. Law Professor Mari Matsuda has found that victims of vicious hate propaganda experience physical symptoms such as difficulties breathing, increased pulse-rate, nightmares and post-traumatic stress disorder. So, I would think, like any form of violence, hate speech should be subject to criminal sanctions, not just toothless symbolic legislation.

And what about the free marketplace of ideas? The idea that the truth will win out through rational debate while bad ideas will wither and die? The problem with these arguments is that they imagine that the marketplace affords everyone an equal right to speak and that every voice is equally loud. This is nothing more than a beautiful fiction. Unfortunately, very little can rival the booming flatulence of Alan Jones. Migrants or Aborigines don’t have the same access to public space.

And you have to wonder why free speech advocates are mostly concerned about the stifling of right-wing views. If people like Tony Abbott were genuinely concerned about free speech then surely they would campaign as fiercely for the protestors involved in the Palm Island riots as for powerful bigots.

We’ve had anti-vilification laws for over twenty years now and don’t appear to have spiralled into a totalitarian state governed by authoritarian morons. I think we need to stop debating whether the laws will gag democracy and start questioning why, in NSW for instance, they apply to homosexuals, ethnic minorities, transgender people and people with HIV but they don’t apply to women. Of the State and Federal Anti-discrimination Acts, only Tasmania condemns inciting hatred towards women through language such as whore or dyke. Is it because too much of what passes as ‘pub talk’ could constitute hate speech? Is it because it would release a flood of litigation around everything from pro-rape facebook pages to misogynistic shock jocks to sleazy uncles? Is it, ultimately, because we live in a society where violence against women is simply not taken seriously? I think it’s high time that Jones and Bolt were sent to the clanger, but for their misogyny as much as their racism.