Can we delete the term ‘hate speech’ from the debate over the role of the law in what people can and cannot say publicly? It only confuses that debate because of its lack of definition and its very vagueness poses the risk of further restrictions on freedom of speech.

The starting point in this area of the law is the fact that any incitement to violence against individual members of the community or groups in the community is and always has been at common law a criminal offence. There is also legislation to similar effect at the federal level and in some of the states.

In addition, under civil, as opposed to criminal law, defamation legislation in all the states and territories protects individuals against false allegations of misconduct, such as corruption or dishonesty; although the law of defamation has never extended to what it describes as common abuse, that is, insults that are so general that they do not carry any allegation of specific misconduct.

Once, however, these kinds of speech are put to one side because they are the subject of criminal or civil liability, most other restrictions on what can be said or written are inevitably aimed at the expression of political opinions. No doubt those opinions may sometimes be outlandish or offensive to some, perhaps almost all, members of the community. One such opinion, for example, is the denial that the Holocaust was carried out by the Germans in the 1930s and 1940s. This is an absurd and offensive proposition but it is a political opinion and should not be the subject of a legal complaint, as it has been, in the Federal Court.

Those proceedings were brought under section 18C of the federal Racial Discrimination Act which makes it unlawful to offend or insult individuals or groups on the basis of race, colour, national or ethnic origin. The constitutional validity of this provision has been challenged in proceedings brought by Greens Senator Mehreen Faruqi against One Nation Senator Pauline Hanson, but this argument has not yet been run. The point, however, of section 18C is not its validity. Because it impacts on the expression of political opinions, it should not be there in the first place.

Section 18C has been on the statute books since 1975 but there are two new proposals for federal legislation that would also target political opinions. The first is the Combatting Misinformation and Disinformation Bill that was released by the federal government as a draft last year. The draft is currently being reworked but its objective remains to enable the Australian Communications and Media Authority to supervise social media platforms, such as Google and Facebook, and to force them to withdraw what this government authority considers to be misinformation or disinformation. It is easy to imagine in contentious areas like climate change that a whole range of views might be labelled misinformation or disinformation.  This would be just another way of supressing political opinions and preventing the community from being exposed to a spectrum of arguments. The premise of the Bill seems to be that people need to be protected from themselves because they don’t have the judgment to distinguish between conflicting points of view. But, as the American jurist William O. Douglas said in the early 1950s. ‘When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents.’

There is nothing new in a distrust of the judgment of ordinary members of the community. In a 2012 report by Ray Finkelstein KC that was commissioned by the Gillard government and recommended the establishment of a government body to regulate the news media, the King’s Counsel said, ‘Even armed with full information, people do not necessarily have the means for weighing and evaluating information’. And as to the capacity of people to engage in critical reasoning, there is, ‘real doubt as to whether these capacities are present for all, or even most, citizens’.

The second proposal for new federal legislation, particularly supported by the Teals, is to regulate political advertising by providing for criminal liability in the case of statements that are supposedly untrue and misleading. Such legislation already exists in South Australia and at first thought it seems terribly reasonable to say that political parties and their campaigns should not be able to make false statements. But consider an opposition claim that the other side is the highest-taxing government ever. This is a proposition that economists could debate indefinitely and the notion that it could be the subject of criminal proceedings seems absurd. But this is just what is likely to happen under the kind of legislation proposed.

A recent example of action being taken against a political comment under existing federal legislation was the forced removal by the eSafety Commissioner of material posted on X about the qualifications of an advisor to an international organisation. X was threatened with an $800,000 fine if the post was not removed. The post was removed but X has complained about this being an attack on freedom of speech and threatened to institute legal proceedings against the Australian government.

Returning to the idea of ‘hate speech’, this label is sometimes used about common abuse but often means no more than the person complaining disagrees with or is offended by an expression of political opinion. The opinion may, however, as already noted, also be disagreed with and found offensive by most members of the community. But this is the real test for freedom of speech.  As another American jurist, Oliver Wendell Holmes said in 1919, ‘I think that we should be eternally vigilant against attempts to check the expressions of opinions that we loathe and believe to be fraught with death.’ It is easy to tolerate opinions that we agree with and do not find offensive. It is only when we find some of them abhorrent that upholding freedom of speech assumes the importance that it has long held in Western society.