US News & World Report

By Nicole Hemmer

“People do have a right to be bigots,” Australian Attorney-General George Brandis declared last week. An uncontroversial statement in the United States, where the recent death of Westboro Baptist Church founder Fred Phelps reminded Americans just how strongly free-speech rights are protected. But in Australia, Brandis’s statement — and the proposed legislation accompanying it — has sparked a furor. (Here’s a strong argument for the changes, and an excellent article opposing them.) The debate reveals the deep differences in how democratic societies understand free speech, and shows how rare America’s expansive speech protections are.

Brandis’s comments came as he announced proposed changes to Australia’s Racial Discrimination Act of 1975. In 1995, new provisions were added to the law that made it unlawful to engage in activity that would be reasonably likely to “offend, insult, humiliate or intimidate” a person because of their race or ethnicity. The proposed changes would, among other things, drop “offend, insult, and humiliate,” leaving it a crime only to intimidate or vilify members of racial and ethnic groups.

In advocating for the revised law, Brandis proclaimed, “Never again in Australia will we have a situation in which a person may be taken to court for expressing a political opinion.” It was a telling statement, because it gestured to the court case that led Brandis and the conservative coalition government to take on the Racial Discrimination Act. In 2011 conservative commentator Andrew Bolt was found to have contravened Section 18C of the Racial Discrimination Act for articles he wrote on “fair-skinned Aboriginal people.” Brandis’s proposals would change the law so that articles like Bolt’s would be permissible.

Bolt is a polarizing figure in Australian politics, and his presence at the heart of this debate sometimes clouds it. But the majority of Australians oppose the change, not because of Bolt but because they perceive legal protections against offensive speech to be a cornerstone of Australian democracy. When a Labor senator called Brandis’s proposal “a green light to racism and all other sorts of hate speech,” she was signaling her belief — a popular one held by many of my Sydney-based colleagues — that limits on speech safeguard Australian society. In Australia, as in Britain and Canada, “free speech” consists of a balancing act between, as the judge in the Bolt case put it, “seeking to promote tolerance” and “the need to protect justifiable freedom of expression.” That logic allows Australia to censor Bolt’s articles and Britain to arrest citizens for offensive tweets.

In the United States, a different logic underwrites free speech. The solution to offensive speech is more speech, not less. The same right that allowed Fred Phelps and Westboro to picket soldiers’ funerals (a right upheld by the Supreme Court) allowed Time magazine to run an obituary that began: “Fred Phelps, a colossal jerk, died Thursday in Topeka, Kansas … He was the kind of person no one wanted to be around: a lawyer disbarred by his colleagues, a preacher disowned by every denomination he ever espoused, a father rejected by his children.”

In a more recent case, the Supreme Court explicitly rejected the logic Australia and other countries use to determine the scope of free speech. In U.S. v. Stevens, a 2009 case about depictions of animal cruelty, the government argued, “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Chief Justice John Roberts forcefully answered that assertion in a response worth quoting at length:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

“Startling and dangerous”: The court drew a clear line on free speech, one far more individualistic and libertarian than the terms of the Australian debate.

It is another one of America’s peculiarities, that fierce defense of individual liberties over social benefits. We see it in America’s restrained welfare state, its permissive gun laws and, on a national level, its reluctance to enter into international agreements like the Kyoto Accords. That individualism led British writers John Micklethwait and Adrian Wooldridge to label America “The Right Nation,” not because it was a country of conservatives but because its national ethos of individualism sustained domestic policies well to the right of other western democracies.

This is not to suggest the United States protects civil liberties as well as it ought. The surge in Espionage Act prosecutions, the soaring incarceration rates, the thriving surveillance state: these are all issues civil libertarians should be working hard to counteract. But the global view helps illustrate how rare the American concept of free speech is, and why it is worth defending.

This article was originally published in the US News & World Report