Freedom of Speech or Responsible Speech?

There’s an ugly conversation taking place in Australia at the moment and it’s polarising the community.  It’s been bubbling away since the war in Gaza commenced but it’s been boiling over since the most horrific terrorist attack happened in Sydney on the first day of Hanukkah.

This blog isn’t a political post.  I try, wherever possible, to not engage in divisive political arguments.  It will no doubt however raise some uncomfortable emotions.  That’s ok, the moment we become uncomfortable is the moment we make a conscious decision to change - or not.

Many Sydney-siders will be aware of the situation I am about to unpack but I imagine most people around Australia and the world will have missed the drama.  It started in late 2024, when Antoinette Lattouf a fill-in presenter/journalist on Sydney’s local ABC radio station, shared a post on instagram from Human Rights Watch. It stated that the Israeli response to Hamas’ actions on the 7th October 2023 can confidently be termed a genocide.  The journalist made no comment of her own, she simply re-shared a post from a reliable and trusted organisation. It should have been unremarkable but it wasn’t.  Instead she was vilified as being anti-Semitic.  Significant pressure was put on the ABC board by Sydney’s pro-Israel lobby and her week-long contract was cancelled.  The journalist made a case to the Fair Work Commission for unfair dismissal.  Her complaint was upheld.  Rather than end things there, the ABC, Australia’s National Broadcaster, elevated the matter and the case was taken to court, where Lattouf won.  Again.  There was no hate speech, she utilised her freedom of speech to share a factual post, from a trusted source on social media.

As the genocide in Gaza has continued, the voices of opposition to the Israeli Government’s actions have become consistent and loud.  Many protest marches have taken place across the world.  Indeed, I have participated in two of them.  Protesters have consistently been labelled anti-Semitic by what has become known as the Zionist Lobby.  Anyone who makes any kind of public criticism of the Israeli Government is at risk of being publicly shamed and called out as anti-Semitic.  It rose to a crescendo in early December in Bondi when two men shot 15 members of the Jewish community on a warm, early summer Sunday afternoon.

Since then, the Australian Government has rushed through legislation criminalising Hate Speech.  But what is Hate Speech and what is Freedom of Speech?  The two are conflated so often that we seem to have lost our capacity to have a nuanced and respectful conversation about it.

One of the more problematic issues where legislation attempts to control the conduct of one person against another person is its subjective nature.  The law refers to a “reasonable person”.  The problem with this description is the fundamental assumption that all people are reasonable and all people have the same basic understanding of what a reasonable person would find threatening.

The most pertinent place where the “reasonable person” assumption has been negated is in situations of Domestic Violence; specifically coercive control.  The history of the “reasonable person” assumption sits in a long held theoretical concept linked to British Law; the man on the Clapham Omnibus (Lord Justice Collins, 1903).  The question in a court of law is, would the reasonable man on the bus (i.e. a middle class male commuting to his place of employment) think this situation was abnormal, or threatening.

Finally, after significant lobbying and an atrocious number of deaths of women, Australian legislation is changing state by state.  Lawmakers have seen that this “reasonable person” test, which was part of domestic violence legislation until very recently, is egregious and has been used to vilify women who report threats of violence and death linked to what any “reasonable person” would see as benign; for example a look or a mild comment related to discussing things later at home.    For a victim-survivor of domestic violence, these comments are terrifying because they are linked to violent and controlling behaviour that no one would ever see because they happen behind closed doors.

The “reasonable person” test has been removed from domestic violence legislation but continues to sit within hate speech legislation.  As we saw with the ABC and their decisions regarding the journalist, there is a very grey line between what two people or groups of people consider hate speech.  Indeed the bar of the new Australian legislation is very low; it refers to a “belief” on behalf of the relevant Minister that hate speech may occur.  It refers to a person believing they are the target of hate speech.  Where the concerns are related to a group of people’s use of hate speech the considerations examine whether they “are likely to increase the risk of politically motivated violence, or of the promotion of communal violence”.

Let’s look at this in reality, using the “live” situation in Australia.  A very loud but, I am told, minority group of Jewish people have targeted ordinary and ”reasonable” members of the community for speaking out against the actions of the Israeli Government.  Members of the community - including myself and, ironically, a significant number of Jewish people - have been labelled anti-Semitic for attempting to hold the Israeli government to account for the atrocities in Gaza. As far as I am aware, there is nothing formal which states that holding a government to account for their actions is anti-anything.  As long as it’s peaceful, it’s simply utilising a person’s right to freedom of speech.  

This however is the fundamental problem when it comes to “hate” speech.  My interpretation of what could be considered hate speech may be very different to what another person considers hate speech.  The very low bar of “belief” that hate speech “may” occur is at risk of stifling any sort of debate.

According to Professor Katharine Gelber, Deputy Executive Dean and Associate Dean (Academic) in the Faculty of Humanities, Arts and Social Sciences at the University of Queensland:

“Ultimately, the criminal law cannot - and cannot be expected to - solve complex social problems.  What is needed is leadership that clarifies that the ethical standards we expect for public debate are not the same as the standards we require for criminality.  We need a dialogue in which people come to understand that people are suffering, and that words can be interpreted and received differently from how speakers might intend when they send them out into the world.  We need to try to build mutual understanding.  The criminal law cannot do this”.

Professor Gelber is spot on when she says mutual understanding.  I would argue that Responsible Speech is a much more nuanced approach to the dilemma.  We now have a world where critical thinking appears to be proactively discouraged.  Whilst by no means a qualitative or quantitative piece of research, each of my children, multiple children of friends and participants in many of my training sessions have experienced situations in schools where debate has been stifled by teachers.  I raised this with the Deputy Principal of one school and she agreed with my concerns.  Her significant experience in leadership roles within the NSW Education System leads her to believe that, as students in university, trainee teachers are not specifically taught either the importance or art of critical thinking and how to engage students in respectful debate.

Critical thinking is vital for an effective and functioning society.  It is the capacity to think critically that prompts us to ask the important questions; to be able to question ourselves, to question motives, to look at conundrums with empathy, to put ourselves in others’ shoes.  

It is deeply disturbing to observe what is happening in the US at the moment.  As a student psychologist I was taught about the early 1960s Yale University Milgram experiment.   It is an experiment that has been widely replicated, which is a concern in and of itself, in my opinion.  Briefly, psychology students were recruited to participate in an experiment they were told was ostensibly about memory, recall and punishment. In reality, it was researching people’s responses to authority and it was conducted to try to understand what happened during the Holocaust.  It is widely agreed that the experiment failed in this regard.

The students were labelled participants for the study and there was a single “learner”; the person who would receive the electric shock.  Participants were provided with a list of questions they were to ask the learner.  Each time the learner got the answer wrong, the participants were told they must administer an electric shock to him.  Each time the learner gave a wrong answer, the participant was instructed to increase the shock level.  The researchers gave each participant an electric shock prior to the commencement of the experiment so they could appreciate the experience of the learner.

What eventuated was, in my opinion, deeply concerning. 100% of the participant group administered “shocks” of 300 volts whilst 65% ostensibly administered “shocks” of over 450 volts to the learners.  The participants could hear the responses of the learner; him screaming, banging on the wall as if he had been flung across the room and eventually silence as the shock levels increased to a fatal level.  A film was subsequently produced about the experiment called Obedience.

Many of the participants experienced significant distress during the experiment and despite being introduced to the learner at the end of the experiment and reassured that he had not been harmed, their distress at what they had ostensibly done remained.  Psychology academics who were not involved in the experiment expressed their concerns about the unethical nature of the experiment and the probability that participation in the study had lasting psychological impact on many of the students.  

This experiment tells us a lot about the human condition but the pertinent point for this blog post is the seeming total lack of critical thinking on behalf of the students.  100% of the students administered what they believed were near fatal shocks and 65% administered fatal shocks.  This study has been replicated on many occasions over the decades with similar outcomes.  It seems that we have learned nothing.

Without critical thinking how are we ever going to be able to distinguish between hate speech and freedom of speech?  What we must do is learn for ourselves the art of responsible speech.  We surely must hold ourselves to account for the words that come out of our mouths.  We must continually raise the question of responsible speech.  We can’t continue to assume that because we believe something and we say it politely, it’s ok for it to come out of our mouths.  We must think about the children and younger people around us.  Are we teaching them how to think critically?  Are we teaching them about empathy and understanding?  Are we teaching them that just because we can say something we should say something?  What if we all joined together to lift the bar from freedom of speech to responsible speech?

P.S. I started this blog post in early January 2026, since then the world appears to have changed once again and we are all on tenterhooks as to what will happen next geopolitically.  It seems that responsible speech is now needed more urgently than ever before.