Don’t kill free speech to kill hate speech

Flawed ‘hate speech’ laws are a threat to free speech. The best way to protect minorities – while also properly protecting free speech – is to ensure the criminal laws prohibiting incitements and threats of violence are effective.

Inciting and threatening violence has long been against the law. Liberal democracies, such as Australia that have strong traditions of valuing free speech, accept speech that endangers the safety of others should be illegal.

However, there has been a push to expand legislation to ban anything deemed ‘hate speech.’ The United Nations has said they want to ‘scale up [their] response to hate speech.’ Although wanting to stop hatred and bigotry is admirable, such statements should be viewed with caution.

‘Hate speech’ is a broad, vague, and ill-defined notion that would simply catch in the legal net the kinds of contentious speech that some people find offensive or hurtful — or simply do not like.

There is a fundamental difference between speech that criticises ideas and threats of violence.

But as my research shows, protecting community safety and free speech is possible. Most state and territory governments are reviewing their vilification laws — they should adopt the model NSW introduced last year.

The NSW parliament passed the Crimes Amendment (Publicly Threatening and Inciting Violence) Act, which criminalises incitements and threats of violence against an individual or group who possess a protected attribute.

In addition to setting a high threshold for proving an offence, these laws vest investigative powers to the police as opposed to the anti-discrimination board of NSW. This allows for a more thorough investigative process, minimising the risk trivial complaints will be brought.

These laws passed with bipartisan support, and the support of community and ethnic lobbies, satisfying an objective of these laws that they are required to ensure minorities feel safe in their community.

Any law that restricts speech needs to be scrutinised and the NSW approach is obviously not perfect. But it presents a workable model — akin to the old criminal laws against incitements and threats of violence.

Free speech cannot be sacrificed by flimsy and unnecessary ‘hate speech’ laws.

This is an edited extract of an article that appeared on Online Opinion.