Racial Vilification and Freedom of Speech in Australia and Elsewhere

Abstract

This paper considers the difficult balance to be struck between values of freedom of speech and attempts by legislators in a range of jurisdictions to ban racially offensive speech. It compares the position in Australia, where the High Court has established an implied freedom of political communication, with the position in the United States, which has enshrined freedom of speech in its Bill of Rights, and in Canada, which has enshrined such a freedom in its Charter. After reflecting how such provisions have been applied in the context of legislative attempts to curb racially-motivated speech, the paper argues that there are real questions over the constitutional validity of Australia's racial vilification laws, since they interfere with an individual's right to express an opinion, albeit an offensive one. This discussion takes place in the broader context of question marks over the utility of banning speech in an effort to improve race relations, and the marketplace of ideas type philosophy, where it is thought that in free democracies such as those under consideration, individuals need to be exposed to a full range of views and opinions, in order to develop more considered views on important topics, rather than have access to views and opinions controlled by the government.