Home' Policy Magazine : Policy Vol 31 - No 1 Contents 8 Policy • Vol. 31 No. 1 • Autumn 2015
DowN iNto the DetAils
mind the disagreement, as he’s the only Human
Rights Commissioner we have who believes in
Then there is the utilitarian or consequentialist
defence of rights, and more particularly of free
speech. As I said this is the home of the great J. S.
Mill, who in his teens edited Bentham, and who
ultimately ties the value of free speech to the good
consequences that flow in societies where people
have very few limits on what they can say. Sure,
there are real harms when people’s feelings are hurt;
or they are insulted; or someone utters hate-filled
words. But the good consequences of allowing that
speech outweigh the bad.
To start, even wrong-headed and hurtful speech
can force those who hold more defensible views to
think again and better justify their opinions, not
to forget the further benefit of having to articulate
them more persuasively. And pretty wide-open
speech creates a crucible of competing opinions
where over time the better will push out the worse.
or at least it will if you are optimistic about the
capacities of your fellow citizens—all the plumbers
and secretaries and everyone else—to discern better
arguments from worse. If you think they are as
morally capable as you are. Such optimism, alas, is
not shared by the world’s Finkelsteins and dare I say
by more than a few of the self-styled human rights
brigade and those employed at Ultimo headquarters.
But if I can return to my core point, it is that even
false opinions can and do have a consequentialist
value for Mill.
Then there are all the dangers of over-reach
when somebody (the government usually) has the
power to decide who can say what. At some point
the regulator will go too far. (Think Andrew Bolt
here, my friends.) All rules, however framed, will
inevitably be over-inclusive at some point. And that
knowable-in-advance bad consequence must be
factored in from the start.
Then there are the good consequences from not
allowing anyone to play the self-styled victim, the
good that flows from having to grow a thick skin.
Where do you think Muslims are better integrated
into society? In the U.S., where there are no hate
speech laws at all? None. Or in France and Denmark
and whole swathes of continental Europe where
hate speech laws pervade the legal systems?
When weighing up the good and bad
consequences, you need also to remember, as this
Millian account makes plain, that everyone is in
favour of speech that flatters and praises and says
what a witty fine-fellow is Jim. The value and point
of supporting free speech lies only in protecting
speech you don’t like. Even in North Korea you
can say nice things about the Kims. The good
consequences for society flow from being able to say
the not nice things.
So Mill’s defence of liberalism, and of free speech,
is precisely of this Benthmite consequentialist
flavour. You throw all the consequences into the
pot—some admittedly bad —and you see if allowing
some particular type of speech is on balance a good
idea. For Mill not all speech was allowable on this
‘what are the overall consequences’ test. But there
isn’t all that much that should be silenced. So Mill
was in no sense an absolutist about free speech.
But he would allow a heck of a lot more than most
commentators in Australia today. I am much of
Mill’s way of thinking. And I think his framework
for addressing the issue is significantly preferable to
the mysticism and theology that, in my view, lies at
the heart of natural law thinking.
From the Olympian Heights Down
to the Quagmire of Detail
Let’s take it for granted that everyone from Julia
Gillard to the plaintiffs in the Bolt litigation would
proclaim an attachment to the abstract principle
of free speech and descend now from that sort of
disagreement-finessing abstraction to a series of
specific scenarios down in the quagmire of day-
to-day life in democracies such as Australia where
concerns about free speech become relevant. I will
give you a series of instances where free speech is
a core concern. you decide if you would allow the
speech or not. My claim is that if you’re on the side
of suppression more than two or three times, you
are not the free speech adherent you think you are.
• A newspaper columnist discusses affirmative
action benefits flowing to Aboriginal people
and argues that such benefits ought not to
go to those who are one-sixteenth or one-
thirty-second Aboriginal. Take it as read that
he really, really hurts some of their feelings.
Links Archive Policy Vol 30 - No 4 Policy Vol 31 - No 2 Navigation Previous Page Next Page