A Free Speech Problem With Marriage Law Survey Safeguards

Advance Summary

1. This article raises concerns about specific "hate speech" prohibitions in the Government's Marriage Law Survey (Additional Safeguards) Bill 2017.

2. This article argues that Sections 15(1)(a) and (b) place unreasonable constraints on free speech by making political opinions attributes that are protected from "vilification", contrary to the normal practice of anti-vilification laws.

3.The ability to express strong criticism of people who present offensive or unfactual opinions serves as an important deterrent against expressing such opinions in the first place.

4. Many aspects of the proposed Sections and the limited exemptions available are insufficiently clear to a lay reader and involve a novel area of Australian anti-discrimination law.

5. Sections 15(1)(a) and (b) should be amended so that they apply only to intimidation and threats and not to "vilification". 

6. If this does not occur, then the debate surrounding the postal survey is not an adequately and clearly free and fair environment for the frank exchange of opinions and criticism.



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Over the past few weeks there has been a lot of discussion about possible safeguards surrounding the conduct of the postal survey on same-sex marriage which is now starting.  I covered this in detail in a previous article Will "Hate Speech" Be Illegal In The "Plebiscite"?

The process of introducing these safeguards has come very late, partly because the pro-same-sex-marriage parties were unwilling to support legislation until the High Court challenges against the postal survey were completed.  As a result we have had weeks of unregulated campaigning, involving large quantities of often unauthorised and offensive material.

The good news is that, with a lot of the campaigning already over, the major parties have found belated common ground on a need to provide election-like protections (authorisation, misleading material surrounding the mechanics of "voting" etc) around the survey.  Moreover, they have managed to put tactical games aside and reach in-principle agreement on a need to go further than normal electoral law allows, and provide for some special short-term protections from intimidation, vilification and threats.  These protections are vaguely similar to those in anti-vilification laws in some states as discussed in the above-linked article.  The Bill to be introduced is here: Marriage Law Survey (Additional Safeguards) Bill 2017.

However there is at least one primary respect in which I believe the new laws go too far and are also too ambiguous. I believe this poses threats to free and fair debate around the postal survey. That aspect is in Sections 15 1(a) and (b) of the Bill, and relevant parts of the remainder of Section 15:

(1) After this section commences, a person (the first person) must not vilify, intimidate or threaten to cause harm to another person or persons if the first person engaged in the conduct that vilified,
intimidated or threatened the other person or persons because of any of the following:
(a) the other person or persons have expressed or hold a view in relation to the marriage law survey question;
(b) the first person believes that the other person or persons hold a view in relation to the marriage law survey question;
(c) the religious conviction, sexual orientation, gender identity or intersex status of the other person or persons.

I have no problems with this section as concerns intimidation and threats.  I am also willing to give (c) a reluctant free pass on the "vilification" front provided that "religious conviction" includes non-religious views about religion (such as atheism).  That said, (c) would be improved by applying the same standard in (b), so that a person is also protected from vilification based on a false belief about their sexuality (etc).  One fairly often encounters homophobes who assume that everyone who actively defends same-sex marriage must themselves be same-sex attracted.

Where I do see problems is with the prohibition on vilifying people on the basis of "a view in relation to the marriage law survey question".  "Vilify" is not usefully defined in the legislation, but a common formulation in the state laws involves inciting hatred, severe contempt or severe ridicule of a person (based on something specific about them.)

Unfortunately, in the campaign so far, there have been countless contributions that have been severely ridiculous, and they remain countless even after we deduct all Tony Abbott's!  In my view, inciting severe ridicule of people who persist in expressing views that are in fact ridiculous is not in any way a bad thing, but is an important disincentive against the insincere expression of stupid and malignant views.  A barrier to fighting malignant stupidity with richly-deserved scorn achieves nothing for good debate, and is in fact a troll's paradise.

I fought a similar battle in Tasmania a few years back when our previous Labor/Green state government, in the grip of (or exploiting) a morals panic about bullying, tried to make religious and political opinions protected attributes in Tasmania's extensive system of 18C-style anti-vilification laws.  The proposal, which came with a staggering absence of safeguards, would have wrecked free debate on political issues in Tasmania for the seventeen seconds it took the High Court to rule it unconstitutional.  See this old article, especially the section titled "Why I Care About This", and there's more in this one.

Exemptions

Anti-vilification law frequently contains exemptions which protect someone whose comments were made in good faith for a purpose in the public interest.  In this case, the exemptions are rather limited.

We have section 15 (2):

The first person does not engage in the conduct referred to in subsection (1) by reason only of the expression of his or her views about the marriage law survey question.

OK, just suppose my view is:

* that the case for Yes is so strong that voting No reflects badly on any person who does it
* that the case for voting No is fundamentally disrespectful of the equal rights of same-sex attracted people and therefore should not itself be respected.
* there is pretty much no way a person could vote No unless they were discriminatory, insensitive, clueless, confused or conflicted.
* that the content of the No campaign will be laughed at by future history, whatever the result, and it is better to call it what it is now than to fawn at its feet for tactical reasons.

You might very well think those are my views, but I could not possibly comment.

If I express such views, am I expressing views "about the marriage law survey question"? I'd say I am.  Someone else might say, no, I'm not, I'm straying beyond the issues into an unnecessary personal attack on No supporters.  I'd challenge that, and so on.  Perhaps I'd win, but as a non-lawyer, how can I immediately know this?

But this is all a bigger problem for the No campaign, because their "case" consists largely of irrelevant distractions.  So suppose that someone publishes material that argues explicitly that gay people are very bad parents. Nothing else. Are they expressing a view "about the marriage law survey question"?  They would argue that they are, because they would claim that the quality of same-sex couples as parents is relevant to whether same-sex marriage should be allowed.  Their view would be false, since same-sex parenting is a separate and largely settled state-level legal issue, but they may still have a sincere and mistaken belief that it is relevant, and therefore they may hold that their view is "about the marriage law survey question".   Others might disagree and say it is just random homophobia and therefore not protected.

(And if I then insult the person who produced such material, and call them a homophobe (which they are) and a bigot (which they probably also are) have I in turn vilified them?  Will my brain be strapped into electrodes so the Court can determine if my "vilification" arises in part or full from my belief that the No campaigner is a No campaigner, or instead exclusively from my belief that they are a clueless homophobe?)

The remaining exemptions, in Section 3, relate to conduct done "reasonably and in good faith" for:

(a) the reporting of news, the presenting of current affairs or any editorial content in news media; or
(b) the communication of matter solely for genuine satirical, academic or artistic purposes; or
(c) the communication, distribution or dissemination of any matter consisting of a publication that is subject to a defence of absolute privilege in proceedings for defamation

What is "news media"?  The term is not defined in the legislation.  Is this here website, which I refuse  to call a blog, "news media"?  It frequently presents news about elections, and is indexed by Google News.  It also from time to time presents "editorial content", of which this is an example.  If it is not news media, where is the line?  If it is, doesn't that make it easy to rort around the legislation by creating "news media"?

An Example

Yesterday I considered, but did not get around to, writing an article entitled "Mimophant Of The Week: Senator Canavan".  Mimophant, a term coined by Arthur Koestler to describe one-time world chess champion Bobby Fischer, is one of my favourite insults.  It's a specific way of saying someone is a hypocrite because they are hyper-sensitive to attacks on their own position, but insensitive to the offence they cause to others.  It refers to the sort of person who can dish it out but not take it.  Bobby had the partial excuse of some serious mental health problems.  Political mimophants generally do not.

Senator Canavan suggested that those on the Yes side concerned about the mental health impacts of the campaign should "grow a spine and grow up" and said "Let's stop being delicate little flowers and have a proper debate". Senator Canavan also in the same burst issued the No campaign's classic whinge of this campaign:  "Apparently if you hold a different view, if you hold a traditional view of marriage, you’re a bigot."  Oh diddums.  Had he been remotely consistent he would have said that No campaigners objecting to being called "bigots" should also grow a spine, grow up and stop being delicate little flowers.

Now, suppose I were to argue on this basis that this is another example of Senator Canavan being damaged goods following his citizenship problems and that his idea of "proper debate" would seem to be very limited given his previous miserable contributions to it.  I might also say that I could hardly think of anything more contemptible or ridiculous than responding to a career setback by taking it out on same-sex attracted people by flying the No flag in such a way.  (Or maybe he was doing that anyway, and I hadn't noticed it before.)

I believe I'd be on safe ground here because of the implied protections for political debate, which are generally understood to include the fitness of MPs for elected office, or lack thereof, within reason.  But suppose I made a similar attack on someone engaged in the debate who was not a politician.  Would I have a 15(2) exemption, given that I had broadened my harsh personal criticism to something outside the MLPS, or not?

We Can't All Be Lawyers

It may well be that some qualified lawyer could come along and tell me that my concerns were groundless, that the exemption in 15 (2) is broader than it looks, that it means something different to what it says, and so on.  (And with a few exceptions I might say, hmmm, yeah, didn't you tell me that the High Court was probably going to strike this survey down?)

But I don't have the time to go running around getting multiple legal opinions every time I comment, and nor should I have to spend the money.  And an opinion that I would ultimately be able to overturn a $12,600 maximum civil fine by a successful High Court challenge, if I went too far in counter-attacking some homophobic troll who was continually making false statements, is frankly no comfort at all.

Moreover, what is being presented in 15(1)(a) and (b) is not simply an extension of normal anti-discrimination laws as seen in various states.  Rather, it represents an excursion into new and radical territory: the under-explored area in which an opinion (even potentially an offensive one) becomes a protected attribute from certain forms of strongly-expressed speech.   By comparison, anti-vilification laws usually protect personal characteristics: gender, sexuality, marital status, age and so on.   For instance, here's the Tasmanian list for anti-discrimination attributes generally.  Of this list, all attributes are covered by anti-discrimination law, but only those from (k) disability up are covered by the 18C-style speech provisions.  (Religious belief is also covered by a more restricted vilification provision.)

There is simply no reason to protect political opinions from "vilification".  People by and large cannot help what personal attributes they have (with "religion" a very borderline inclusion here) and there is good reason to provide some minimal level of protection from personal "hate speech" based on such attributes.  However, people do have a lot of control over what they choose to say about contentious political issues.  If they choose to speak insincerely, malignantly cluelessly, offensively or in support of denying rights to others, then they should expect some pretty strong blowback from time to time.  One person's freedom to say something idiotic is another person's freedom to call them a blot on society, is the first person's freedom to say what they like in response and so on.

The proposals in 15(1)(a) and (b) as concerns "vilification" seem to me to be a rush-job.  The amount of time that should be put into carefully considering whether to include these provisions in any legislation at all exceeds that available for the entire MLPS.  An appropriate change would be to apply the "vilification" aspect to 15(1)(c) only, and not to 15 (1)(a) and (b).

There are doubtless many other interesting areas to explore in the proposed legislation, but this is the one I was always going to jump to first.  I will probably post links to comments by others, or feel free to add comments on anything relevant in comments.

PS I have sent a quick 2-page submission to the Senate committee examining this postal survey.

Update (Tuesday 12:10) - this bill has now sailed through the Senate on the voices with not even a division, although Senators Hanson, Roberts, Bernardi and Hinch did indicate they wouldn't be supporting it in its current form.

Most tellingly, Senator Hanson asked Senator Cormann whether signs saying "homophobic bigots" at a Yes rally would be illegal under this legislation.  Senator Cormann said it wasn't for him to say, and while indicating that there would be a bias towards free speech in the policing of the legislation, couldn't give a clear yes/no answer regarding whether such signs would be legal.  Surely if this question cannot be quickly and easily answered the parliament has no idea what it is doing in passing this Bill.

Update (Tuesday evening) - this bill has also sailed through the Reps though I am yet to see the voting details.  I have changed the site boundary from the usual purple (which signifies general neutrality between Labor and Liberal) and am experimenting with other backgrounds that are not any combination of the colours of any party.