On the marriage equality plebiscite, let's not confuse free speech with a free-for-all

In recent days some of the proponents of a plebiscite on marriage equality have argued it is important because it will allow people to air their views. The government has suggested that it would be democracy at work. Attorney-General George Brandis has said Australians can handle “hurtful arguments” because “we’re a democracy” that is “accustomed … to robust public discussion”.

But opponents are worried about the likely tone of any plebiscite on same-sex marriage. Labor claims the campaign is likely to unleash vitriol and vilification against the LBGTIQ community. Advocates of marriage equality have argued the same point. Sharyn Faulkner, from Parents and Friends of Lesbians and Gays, worries it will be a “platform for hate”.

Who is right? What are the free speech issues at stake in the plebiscite?

Those who support an open discussion tend to assume that more public debate is inherently better than less. There is an assumption that any type of speech enhances, rather than detracts from, the quality of public discourse.

What this view fails to understand is that all speech is not necessarily good. In fact, sometimes speech can harm by marginalising, excluding, and discriminating against other people in ways that actually prevent them from participating in the debate, and therefore from practising their own freedom of speech. We know this from studies of the effects of hate speech.

At its core, the principle of free speech suggests it is a public good because it enables people to engage in the deliberation that is essential to them forming their own views of a good life, holding those views in an informed way, and engaging in the self-governance that legitimates democracy.

Our politicians and our parliaments are held accountable through the speech (theirs and ours) that enables us to discuss ideas openly.

But this principle contains an implication within it that is not always recognised. This is the implication that in order for free speech to do all of those good things that it is meant to do, as many people as possible need to be able to participate in it.

And to make sure that as many people as possible can participate in the good thing that is free speech, we need to establish the requisite enabling conditions.

This means it is reasonable to ask people to exercise the responsibility that is intrinsically connected with a free speech right. This is the responsibility to speak well, by which I mean not harming by excluding, marginalising or discriminating against others in ways that mean they are not able to participate in the debate fully and openly.

Like any right, the free speech right carries with it commensurate responsibilities – primarily, the responsibility not to harm others. But free speech libertarians don’t recognise this. They assume, superficially, that free speech means anyone has the right to say anything, any way, any time, to any one.

That isn’t free speech – it’s a free-for-all, in which the loudest, the most bullying, or those with the most money get to speak and the rest just have to listen while being excluded from having a voice.

It is clear already that some supporters of a marriage equality plebiscite, and the public debate it is likely to engender, do not understand or appreciate the responsibilities that come with free speech rights.

For example, the Australian Christian Lobby has suggested that sexuality-based anti-discrimination and anti-vilification laws ought to be suspended for the duration of the plebiscite campaign, so that people can speak “freely”. This means they are aware their words are likely to harm, marginalise, exclude and discriminate against LBGTIQ people.

Speech that harms does not equate with democratic debate. But we have heard no commitment from the government or from supporters of the marriage equality plebiscite to lead public debate in ways that discourage, or reduce the risk of, harmful speech.

The best way to have a public debate in a way that discourages, or reduces the risk of, harmful speech is to have it in the parliamentary chamber, where elected representatives get to practice the democracy they claim to support, and they have the opportunity to lead by example.

Free speech means there is no topic that ought to be considered off-limits in public debate. But a robust free speech principle also means we have a responsibility to discuss any and all topics in ways that do not harm others.