Free speech and antisemitism: drawing the line |
In this extract from his submission to the Royal Commission on Antisemitism and Social Cohesion Gareth Evans argues that it is crucial that protest language claimed to be inherently antisemitic be evaluated on a case-by-case basis, taking into account context and intent.
It is not surprising that the explosive increase in speech and conduct characterisable, accurately or otherwise, as antisemitic, has occurred over the last two and a half years, in the aftermath of the appalling events of 7 October 2023. Israel was perfectly entitled to respond with furious intensity to the indefensible outrage perpetrated by Hamas militants on that date – a massacre of over 1,000 innocent Israelis which, however explicable the emotion which triggered it might be, remains impossible to morally justify.
But it was not very long before the number of innocent Palestinians men, women and children indiscriminately massacred in return came to wildly exceed, now by many scores of thousands, the Israeli death toll. And that disproportionate response, and some of the hateful rhetoric accompanying it, has triggered the intense continuing public protests, in this country as elsewhere, with which we are all now familiar.
It is equally unsurprising in this context that those with responsibility for maintaining order and defusing communal tensions – governments, police forces, university administrations and others – should, in order to simplify their enforcement task, be tempted to make explicitly unlawful, or subject to automatic institutional discipline, particular slogans and other forms of expression deemed to be inherently antisemitic, rather than subjecting them to case by case evaluation, taking into account, as necessary, both context and intent. The most currently attractive linguistic candidates for such specific outright bans – already in place in Queensland, and proposed in NSW – have been the slogans ‘Globalise the Intifada’ and ‘From the River to the Sea, Palestine shall be Free’.
However understandable this response, it is submitted that it is a serious over-reaction, one very troubling in its implications for the paramount democratic value of free speech, now recognised by the High Court as the constitutionally protected implied freedom of political communication, and should be explicitly rejected by the Commission. Potentially problematic forms of expression should be left to be dealt with by general hate speech law, properly drafted and applied.
General principles which should govern hate speech laws
Hate speech legislation, or more general hate crime legislation including hate speech provisions, is not problematic to the extent it focuses on the causing of harm. Words can incite to violence; they can intimidate, creating a fear of injury or some other adverse consequence; and they can humiliate, causing real psychological damage. And as such it is entirely appropriate that there should be legal sanctions against their public use. But words can also be offensive or insulting without necessarily being harmful in any of these senses. Such words can be socially or morally unacceptable, to be deplored, and justify educational effort and social pressure to try to get people not to use them in public, but not be so damaging as to justify any kind of formal legal proscription, given........