Amicus Curiae: In Defence of Free Speech


The right to free speech is the right to express one’s opinions without censorship or restraint. Free speech allows us to engage in debates, which is integral to arriving at the truth. Recent events surrounding the “deeply religious” rugby player, Israel Folau, have sparked debate around when dialogue becomes hate speech or harassment. It is vital to protect free speech despite fundamental disagreements people may have in free and democratic societies.


Israel Folau has never shied away from expressing anti-gay sentiment, be it his opposition to gay marriage, or the belief that gays will go to “HELL… unless they repent for their sins to [the] God [of his choice]”.Some people observing Folau’s relentless obsession with gay sex could sympathise with him. Where you are born greatly impacts your religious beliefs, which begs the question – why is Folau so confident in his faith? Bear witness to Folau’s hypocrisy when he clings to the Bible when it comes to sending gays on the next bus to Hell, but proudly adorns his body in tattoos and wears his polyester and spandex Waratahs jersey, but I digress. What was forgotten by Folau was that although free speech is protected by law, it does not entail that people have to put up with hatred. Folau’s comments resulted in disapproval from other sportspeople and commercial consequences, with more on the horizon.


As someone who belongs to the demographic Folau claims to love, but condemns to hell, I believe his democratic right to free speech should be protected until it incites violence or disturbs public order, vis-á-vis the Summary Offences Act, or constitutes bullying or harassment. I believe so because free speech does not expect you to agree with every opinion that is aired, but if you support the fundamental right to freedom of expression, you must support the right to have opinions that you do not agree with. It is not the opinion that matters, but the fundamental right itself.

Hatred towards those with different predispositions to oneself is no different to the hatred people have felt throughout history and continue to feel today for the colour of their skin.

A psychoanalysis and behaviour analysis may offer fascinating reasons for Folau’s bigotry towards the gay community. These reasons may be as simple as homophobia, or more complex such as an irrational fear instilled in him through religious indoctrination where he feels that to not tell strangers he has never met, or those who are oblivious of his existence, that they will go to Hell for being gay, he will not be as good a Christian as he hopes to be. To me, this hatred towards those with different predispositions to oneself is no different to the hatred people have felt throughout history and continue to feel today for the colour of their skin. For all of human history, people looking a certain way has been the basis of others seeing them as inferior and subject to cruelty, which was justified through the perceived lower status of those who were being oppressed.

In Defence of Offence

A right to free expression allows us to chuckle at the irony of Brian Tamaki supporting Israel Folau in spreading the gospel of gays burning in Hell, and later getting burnt in a garbage fire himself. The late Christopher Hitchens famously said “every time you silence somebody, you make yourself a prisoner of your own action because you deny yourself the right to hear something”. Hearing distasteful opinions allows us to decide on the kind of society we would not like to be a part of. This right must be advocated for in order for us to engage in challenging debates that help shape social morality. Free speech has to be as untrammelled as possible so that people can be wrong, biased, express their opinions, no matter how dark, and consequently allow themselves to be subject partly to improvement by the world, but also by social intermediaries.A defence of free speech also requires a defence of another’s right to offend us and our dearest beliefs. Galileo offended the Catholic Church when he said that all celestial bodies do not orbit the Earth, and in the process, he made the world a better, more understandable place. John Wilks’ newspapers overflowed with sex, lies, scandals, and in the process, he gave birth to press freedom. Karl Heinrich Ulrichs offended the 19th century German society by arguing that homosexuality is an inborn condition rather than a learnt corruption and pioneered the gay rights movement.

Folau's comments are bigoted, but cracking down on his expression would deprive us of an opportunity to try our arguments against their opponents.

We can't win people over by silencing them, we can only hope that with the truth and falsehood in a fair race, the truth will win more often than not. This sounds like a big leap of faith, but it's not an unreasonable one. In the past, homophobic forces held all the social cards, and they still lost: so too forces against feminism, against freedom of religion, against democracy, which held the social power, and still lost. Part of why they lost is that they set up an echo-chamber of censorship, and failed to engage with opposing arguments, until person-by-person, private conversation-by-private conversation, they suddenly didn't have a majority. We should thank Folau for being so open about his beliefs, and giving us an opportunity to test our arguments. And most of all we should have confidence in our own beliefs: if we are correct - as I'm pretty darn sure we are - we'll win this argument, like we won before.Clamping down on offensive content carries on a long tradition whereby the elites take it upon themselves to police the parameters of acceptable thought and to exclude offensiveness from our periphery. Humans have long had the urge to offend against the natural, moral, religious orders, and have pushed humanity forward in the process. People having given offence is one of the primary reasons we enjoy the freedoms we do today. The right to offend isn’t a part of freedom of speech we have to put up with; it is the heart and soul and lungs of free speech. It is the coursing lifeblood of human progress, it is the instigator of liberty, of modernity, of science and of understanding. Our enlightened lives are a gift from individuals who gave offence, who blasphemed to the dominant ideas of their eras, who paid for it in courage and in blood. Their offensiveness made us free.As a proud New Zealander who supports democracy, in a country with a history of supporting equal rights, voting for women, gay marriage, I will continue to defend free speech. Everybody loves human rights, including free speech; they love their own, and it’s others’ free speech that is a problem. Tyranny sets up its own echo chamber, and the idea of shutting down free speech, and consequently shutting down debate, should be fought at all costs.—The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.Featured image source: 1 source: