A better democracy?

Presumably Tony Abbott and his staffers have a presence on Facebook. Given his recent address to the Institute for Public Affairs it might do Mr Abbott some good to check out change.org's petition against the racist Aboriginal meme's Facebook page.

The racist Facebook page is a disgrace. Yet again, a group of inadequate and resentful people have given vent to their prejudices by setting up a decidedly racist Facebook page that contains false claims, base vulgarities and obscenely racist statements. Are we a better democracy because of this kind of speech? We might instead be a better democracy because of the way in which decent people have successfully lobbied against the Facebook page.

It is difficult to disagree with the proposition that a liberal democracy requires a high degree of free speech. Yet, what is doesn't require is an unbridled amount of free speech. There are always going to be genuine and legitimate reasons to limit free speech. These can range from the mundane, as in the trade practices laws, to the controversial, as in the Racial Discrimination Act.

Ever since Andrew Bolt's defeat in the Federal Court there has been a campaign to repeal Part IIA of the RDA. Much of the commentary driving the campaign has been unhelpful. Many of the op-eds in its favour are littered with basic errors of law.

At the forefront has been the IPA. My criticism is that what is lacking in the campaign by the IPA and others is any recognition that the use of speech to intimidate and harass others is in of itself a free speech issue.

There is a tragedy of the commons issue here. The concept of the tragedy of the commons is that if an asset is free for all to use then it will eventually get degraded when nobody takes care of it. That is, everybody uses it, but nobody has an incentive to make sure that the asset is looked after and remains viable in the long term. It might be helpful to think of the marketplace of ideas as an asset. If speech is completely free in this marketplace there may be adverse outcomes. All sorts of deceptions, extreme distortions and intimidating speech might cause damage to society and individuals before any redress comes about. In effect, if speech is completely free then the most violent and aggressive people can use their speech to intimidate and harass others and shut them out of public space.

Leaving aside for a moment the charged environment of racist speech, much the same problem can be seen taking place in online video gaming.

Take for example relatively recent events in the online gaming world. In May 2012, Anita Sarkeesian began a campaign to work on gender roles in online games. In response she received a lot of hate mail and online abuse. This included threats of violence. It also included a young man in Canada creating a game called "Beat Up Anita Sarkeesian". The game was taken down from its website after a day, but it's safe to say that it was intimidating.

If a feminist, an activist or an ordinary female cannot participate in a discussion on gender or even just play a game online without being subjected to vile abuse then isn't that a denial of freedom? Should free speech protect misogyny? In response to Sarkeesian's travails people responded generously with support and donations.

Recently, the corporations that run online video games have taken steps to prevent harassing and abusive speech against women.

It is an example of how free speech actually works in the United States. The First Amendment guarantees free speech. This has allowed extremist speech to flourish. However, where that extremist speech, whether it be extreme racism or misogyny, interferes with the activities of some private organisation, contract law gets invoked to shut it down.

Though different in nature, the Sarkeesian affair is a microcosm of the type of struggles that take place over racist speech. In effect what has happened in the online gaming world is that the consumer demographic has changed. There are now more female gamers with purchasing power. The corporations are responding to their purchasing power. Yet, there is a small core of male gamers who feel dislocated by the 'encroachment' of females into what was previously a male-dominated arena. Their response to that is predictably vulgar and offensive.

You can see the same thing happening in debates on multiculturalism, immigration and racism. There is always a group that feels put out that the newcomers are 'encroaching' on 'their' space. They claim ownership of something that is actually a commons and some of them abuse the newcomers.

Why should we change our laws to placate people whose only response to anybody who is different is to abuse them and to threaten to harm them?

The fact is that we need some type of law to deal with intimidating and harassing speech, particularly in the social media age. Whether those laws should be tied purely to race is another matter and a debate for another day. We do have criminal laws, but enforcing them can be difficult in practice. Why should we deny a private right of action under the civil law?

That said, if you set the threshold too low then the value of the law gets diminished.

This where the criticisms of the Bolt case may have some bite.

Much of what Andrew Bolt wrote has been raised, somewhat more eloquently and without reference to specific individuals, by other commentators. The gist of Bolt's article was that a given group of individuals had too much European heritage to qualify as Indigenous for the purposes of affirmative action measures.

Was raising that issue actually racist or was it racist in the way that he specifically raised it? The problem is that because Bolt got facts wrong and exaggerated he could not get the benefit of the free speech exemption. If you exaggerate and get basic facts wrong then it's quite hard to make out that you are acting "reasonably" and in "good faith". Yet, his case does illustrate the problem with the low threshold in s 18C of Part IIA of the RDA.

While Bolt's article was offensive within the parameters of s 18C, its offensiveness in terms of racism was at the lower end of the spectrum. Bear in mind that many others have raised Bolt's underlying point in a general sense without getting sued. In contrast, Holocaust denial speech, such as that in the Toben cases and direct racist assaults, as in Campbell v Kirstenfeldt, are more clearly speech acts that are seriously offensive.

If an Abbott Government raises the threshold then it's hard to see what the problem would be. A balance needs to be struck between protecting people from harassment and intimidation while still allowing us to discuss sensitive issues. With a higher threshold in s 18C the laws would still apply then to direct abuse and to Holocaust denial. Even if Abbott does away with them in their entirety there would still be the State and Territory laws on vilification.

Abrogating the racial vilification laws in their entirety would be a mistake. The whole point of free speech is that it facilitates democratic participation. When a group of disaffected individuals use speech to intimidate and harass they reduce the ability of others to participate in our democracy. It is sad that some people are deeply unhappy and resentful, but allowing them to scapegoat minorities and women won't solve their problems. It just creates new ones. We need a balancing act on speech – one that allows people to live free from harassment and intimidation.