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Civil libertarians in the U.S. argue that attempting to bury racist speech underground may only make martyrs of the speakers and solidify the attitudes they express. History tells us that censorship invites – and incites – resistance. Nothing in our national experience suggests that silencing evil has ever corrected it. They add that to eradicate racism we need to listen to the words which are expressed, to delve beneath them, to find our own words of reply and explanation, before we can even begin to make the changes we seek.63 In this sense, broad legal prohibitions on racially offensive speech will never alone be successful in eliminating racism from our society. They may even be counter-productive – when ideas are forcibly repressed they cease being exposed and challenged in the course of public debate. Perhaps the most compelling evidence to this point is pre-Nazi Germany. The Weimar Republic of the 1930s had several laws against ‘insulting religious communities’ and these laws were fully applied to prosecute hundreds of Nazi agitators, including Joseph Goebbels. Far from halting National Socialist ideology, those laws helped the Nazis achieve broader public support and recognition,

and ultimately assisted the dissemination of racist ideas. As Brendan O’Neill points out:

The Nazis turned their prosecutions for hate speech to their advantage, presenting themselves as political victims and whipping up public support among aggrieved sections of German society, their future social base. Far from halting Nazism, hate speech legislation assisted it.64 Naturally, nobody denies the harm of hate speech, but speech rights are most necessary for the weak, not the powerful. Conversely, the restriction of individual viewpoints is a serious infringement of democratic values, and the gains from hate speech laws are tenuous. Any possible benefit is outweighed by the chilling effects of such laws to democracy and freedom of speech. Under democratic theory, one might say, ‘open discourse is more conducive to discovering the truth than is government selection of what the public hears. Free statement of personal beliefs and feelings is an important aspect of individual autonomy’.65 Unintended consequences Although we should not allow our rights and freedoms to be undermined by the inflated sensitivities of any religious group, hate speech laws may actually serve the undesirable purpose of creating a new and more disguised form of blasphemy law, which allows religionists to make others keener to accept a vast range of religious restrictions to their freedoms in return for ‘being left alone’. This is particularly evident when one takes into account that the amendments to the RDA were abandoned following pressure from the Australian Muslim community.

Throughout the Muslim world, ‘accusations of blasphemy or insulting Islam are used systematically in much of that world to send individuals to jail or to bring about intimidation through threats, beatings and killings’.66 It is applied against Muslims who are judged to be apostates and against non-Muslims when they are considered to have lost the ‘protection’ afforded to them under the dhimma pact, or covenant protection.67 Under Islamic jurisprudence, any such transgressions, if performed by Muslims, are regarded as evidence of apostasy, a capital offense.68 Conversely, if the transgression is attributed to a non-Muslim living under Islamic rule, this is interpreted as annulling their dhimmi condition, for which the death penalty is also applied. The offending dhimmi must be treated as ‘an object of war’, which according to Sharia law means ‘confiscation of property, enslavement (of wife and children), and death’.69 As Dr Nazir-Ali points out, ‘there is unanimity among the lawyers that anyone who blasphemes against Muhammad is to be put to death, although how the execution is to be carried out varies from one person to another’.70 Arguably, one of the greatest ironies of hate speech laws is embodied in the fact that their chief beneficiaries end up being a small but vocal group of extremists. Of course, it is not clear why such people should merit any statutory protection from ‘hate speech’. Surely, some of their more obnoxious statements deserve our criticism.71 And yet to express any such indignation may incur the risk of being dragged into a court and accused of vilification under the existing laws.

Conclusion The Bolt decision provides strong evidence of the attack against freedom of speech in Australia. It is alarming that an individual may be taken to court simply for expressing an opinion. This is scarcely likely to promote tolerance.

As James Spiegelman QC points out, ‘protecting people’s feelings against offence is not an appropriate objective for the law’.72 As explained by him, ‘the freedom to offend is an integral component of freedom of speech. There is no right not to be offended’.

To conclude, the government’s recent decision to backtrack on its proposed changes to repeal section 18C of the RDA has ignored that at the foundation of Australia’s democracy is a right of every citizen to speak freely on matters of public importance. Besides its misapprehension that the RDA is somehow related to matters of religious vilification, one must not lose sight that such laws have the capacity to unreasonably compromise free speech.

At its core, section 18C of the RDA is a highly problematically worded provision. The government’s decision, therefore, is truly regrettable as it signals a lack of understanding that such laws constitute an undue restriction of free speech, which is an essential characteristic of our democratic system of government.





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2.4 Dr Kesten C. Greenvii University of South Australia Business School & Ehrenberg-Bass Institute Topic: Commercial speech: the valuable right to speak freely about matters affecting one’s livelihood Economic theory suggests that interfering with the right to speak freely about matters concerning livelihood will cause harm, and yet such speech is regulated and subject to other government influences. Speech regulation assumes accurate prediction of the costs and benefits of an intervention, and intervention only when the net is positive. The forecasting methods used make accurate forecasts unlikely, and the theory suggests regulation will fail. Unsurprisingly, then, there is no evidence that commercial speech regulation has ever been beneficial. Further, government interventions in the form of media and research funding and lent authority, crowd out commercial voices, amplify selected voices and quell others. Eliminating barriers to the free flow of speech would leave Australians better informed, and better off.

Experimental evidence on disclaimer removes regulation from the books In 2007, I was involved in preparing evidence for a Florida court case on the effect of a government-mandated disclaimer on consumers. My colleague and I commissioned fieldworkers to show two advertisements to Florida shopping mall visitors. The ads were for implant dentistry services. One of the dentists made no claim to credentials for performing implants. The other advertised American Academy of Implant Dentistry (AAID) qualifications. One version of the qualified dentist’s ad included the Florida mandatory disclaimer. The disclaimer stated that the American Dental Association does not recognise the AAID as ‘a bona fide specialty accrediting organization’.

When asked, ‘which dentist would you recommend to a friend who needed implant dentistry?’, more of those who had seen the disclaimer chose the dentist without the credentials. The findings from our experiment convinced the judge that the disclaimer was inconsistent with the public interest and could not, therefore, be justified.

Experimental evidence fails to support speech mandates We looked for evidence on whether the harm caused by the Florida disclaimer was unusual. Anecdotes abound. For example, when the U.S. Federal Trade Commission lifted their prohibition on comparative health claims, cigarette companies developed ways to reduce harmful tar and nicotine levels. Anecdotes and non-experimental studies cannot, however, disentangle long-run causes and effects in complex and uncertain situations, so we looked for experimental evidence.

We found eighteen studies. For example, more high school students exposed to ‘DANGER, Shallow Water, You Can Be Paralysed, NO DIVING’ signs dived into the shallow end. More people chose to watch violent movies when the description included a warning message. When M&Ms were labelled as ‘low fat’, consumers – especially overweight ones – ate up to 50% more. And people with health complaints who had seen TV drug ads including mandated product risk disclosures were less knowledgeable about the drugs’ benefits.

The clear conclusion from the studies is that government mandated speech confuses buyers, and is either ineffective or harmful. As it happened, two law professors (Ben-Shahar and Schneider) had been reviewing evidence on mandatory disclosures at the same time as we were looking at speech restrictions.73 They came to the same conclusion.

Experts fail to forecast the effects of speech regulations Here is a challenging statement: experts are useless at making predictions about what will happen in complex uncertain situations. The conclusion, from decades of research on forecasting, is that experts’ judgmental forecasts are about as accurate as those of novices, or just guessing.

vii Dr Kesten Green is a leading expert on forecasting. He has served as a Director of the International Institute of Forecasters, and is co-director of the Forecasting Principles (ForPrin.com) and Advertising Principles (AdPrin.com) Internet sites. Dr Green’s research has been covered in the Australian Financial Review, London Financial Times, New Yorker and the Wall Street Journal. A founder of four businesses, his research spans diverse business forecasting problems as well as public policy issues affecting businesses including climate change, corporate social responsibility and government speech mandates.

This is a problem. Government attempts to regulate what can, cannot, and must be said are currently based on expert judgments of what will happen.

Scientific forecasting to help predict effects of speech regulation There is an alternative to experts’ judgments, and guessing: namely, scientific forecasting. Scientific forecasting is the product of evidence from decades of testing of alternative approaches in many disciplines.

We now have a unifying theory of forecasting: the Golden Rule of Forecasting. The Rule is to be conservative when forecasting. To put it another way: forecast unto others, as you would have them forecast unto you.

Conservative forecasting is simple in concept. First, you need to know everything worth knowing about the situation.

Second, apply that knowledge using scientific forecasting methods.

Yes, the Golden Rule provides a high standard for would-be speech regulators to meet. But isn’t that appropriate given that government regulations involve compulsion, and may cause harm?

To help check if the predictions of benefits from a speech regulation are sound, we’ve provided an online checklist of 28 guidelines at goldenruleofforecasting.com.

The Iron Law of Regulation foils regulators The Iron Law of Regulation states that, ‘there is no form of market failure, however egregious, that is not eventually made worse by the political interventions intended to fix it’.

The problem is that a regulator cannot know enough about the situation, and the preferences and circumstances of the citizens whose lives she wishes to regulate. This has been known for a long time – even before 1759, when Adam Smith referred to the conceit of the fellow who imagines he can arrange people as if chess pieces.

The natural role of sellers Sellers provide buyers with products that they want at prices they can afford in order to be profitable. Sellers know more about their product, their market, and their customers than anyone else, and need to take care of their reputation for fair dealing if they are to survive.

The natural role of buyers Buyers aim to use their money in ways that give them the greatest benefit. They know that sellers are motivated by selfinterest and so are inclined to be sceptical about sellers’ claims. Competing sellers, word-of-mouth and a vigilant media help buyers to beware.

All of us wonder sometimes at the way other people spend their time and money. We should nevertheless reject the illusion that some of us are so knowing, so clever, and so pure of motive that, by controlling speech, we can make other people happier than they would otherwise have been.

The natural role of the media Commercial media organisations hope to make profits by providing information – in the form of advertisements, community announcements, warnings, news, commentary, discussion, political speech and investigative reports – that readers, listeners and viewers value.

In doing this, the media helps people make decisions that affect their livelihoods. Thanks to technological advances and economic growth, people have better access to information now than ever before.

Regulation and government provision subvert natural roles In practice, we buy and sell and live and work in an environment in which the government regulates speech.

Sellers have to conform to regulations that dictate what they cannot say, and what they must say. Buyers know this and, especially when they see or hear government-mandated messages, assume that the government is looking after them and so are less vigilant and more rebellious.

Free Speech 2014 • Symposium papers • 23 2 Accommodating Rights (Session 1)

Because sellers have the responsibility of free speech taken from them, they are less motivated to take care. If harm does occur, sellers can claim that they were ‘just following regulations’.

For example, before governments mandated poisons labelling, sellers took elaborate precautions to avoid harming their customers. They used dark blue textured bottles in exotic shapes to warn all, including the illiterate and blind, that the contents were dangerous. Government mandated warnings needed a large smooth surface to display them. Sellers switched to plain clear bottles.



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