Free speech vs hate speech

United Nations Secretary-General António Guterres recently reaffirmed the UN’s commitment to stopping hate speech, expressing his concern at what he described as, “…a groundswell of xenophobia, racism and intolerance – including rising anti-Semitism and anti-Muslim hatred.”

Our response to hate speech needs to be carefully considered because hate speech laws need to be able to protect the public without unduly infringing on free speech.

During the drafting of the Universal Declaration of Human Rights, liberal democracies including Australia, the United States, and the United Kingdom, opposed the introduction of provisions against hate speech.

There were concerns about the potential implications for free speech, and they believed limitations on free speech should only exist to prevent the incitement of violence.

However, during the 1960s, attitudes to hate speech began to change. After a number of instances of anti-Semitic violence, and out of a desire to fight apartheid, new conventions against discrimination and hatred were introduced.

Two of the most prominent covenants, introduced were the International Covenant on the Elimination of all forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR).

These placed restrictions on, among other things, material that advocates racial superiority, hatred, hostility, and incitement to discrimination. Australia is a signatory but has reservations in both covenants.

These reservations were included because, during this time, Australia had public order acts in place that criminalised incitement to violence. They believed such laws were sufficient for addressing hate speech.

Nonetheless, since the 1970s, when Australia was introducing a variety of anti-discrimination laws, our approach to hate speech began to change. Most Australian jurisdictions now have laws that prohibit vilifying, inciting, harassing, or insulting language on the basis of a variety of protected characteristics.

The shift from prohibiting speech that incites violence to speech that offends or insults is significant. The introduction of laws such as Section 18C that include subjective offence tests has a negative impact on free speech.

Returning to the old standard of incitement to violence would help in both protecting free speech and public safety.