Newspapers cannot justify running Clive Palmer’s Trumpet of Patriots ads as freedom of speech

The publication by the Newcastle Herald of a political advertisement by Clive Palmer’s Trumpet of Patriots party stating “there are only two genders – male and female” has provoked a backlash that has seen the advertisement removed from the paper’s online edition.

The publisher, Australian Community Media, has apologised for printing it in the first place, and a scheduled appearance of the ad in The Age has been cancelled.

This raises a question about freedom of speech, particularly political speech.

There are three reasons why this advertisement does not deserve the protection of the free-speech principle.

The first is that it is factually wrong. The second is that it attacks people for an attribute of birth, and the third is that it is unjustifiably harmful, being calculated to arouse prejudice for political gain.

It is factually wrong because there are people in the community who are trans or gender-diverse. The Royal Children’s Hospital in Melbourne has a Gender Service clinic to assist children and adolescents in this situation. It states on its website that being trans or gender-diverse is seen as part of the natural spectrum of human diversity.

The clinic’s website also draws attention to the risk of harm to these often vulnerable young people. It states that they experience considerably higher rates of depression, anxiety, self-harm and attempted suicide compared with their cisgender peers because of their experiences of stigma, discrimination, social exclusion, bullying and harassment.

More generally, the British philosopher A. C. Grayling has developed a scheme for assessing harm arising from prejudice against people on the grounds of certain attributes.

In his scheme, he identifies what he calls attributes of birth: race, nationality, skin colour, gender, sexual orientation and disability among them. This provides valuable guidance about the attributes that deserve the most robust protection.

It is not necessary for the editor of a newspaper to be familiar with any of this in order to see that an advertisement of the kind published in the Newcastle Herald was totally indefensible. All that had to be done was to substitute race or skin colour for gender and ask: would we publish such an advertisement?

On top of that, since 1984 Australia has had a Sex Discrimination Act, the latest iteration of which makes it an offence to discriminate against a person on the grounds of gender identity or intersex status, making it clear that these are protected attributes under the law.

Australian Community Media said it has checks in place for political advertising, “but on this occasion the process failed and the advertisement was not reviewed before publication”.

The obvious question is, why not? Even at face value the advertisement is factually wrong as a matter of general knowledge, which would be as good a starting point as any for making a decision about whether to publish it.

The ad goes on to say: “We must stop confusing children in schools. Give them a safe and normal environment to grow and develop in and let them decide who they are when they become adults.”

This is the purest humbug. It pretends to stand for the protection of all children from “confusion”, while exposing some children to the risk of serious harm.

Nor can the ad be defended as a statement of opinion. It is unambiguously purporting to be a statement of fact.

At The Age, journalists reportedly wrote a formal letter of complaint to management after discovering the same ad was booked for the front page of that paper on Wednesday March 12.

However, The Age and News Corp newspapers have published other Palmer ads that have aroused indignation. On March 7, the front page of the Age carried an ad that read: “We don’t need to be welcomed to our own country.” On March 11 the front page ad said: “Too much immigration destroys infrastructure.”

Race is clearly an undertone in both of these, but they are directed at practices and policies, not at people’s personal attributes. In this way, they are categorically different from the ad about gender.

In no civilised country is the right of free speech absolute, although political speech enjoys a high degree of protection.

The point at which, by convention as well as law, democracies draw the line at free speech is the point where the speech does harm to others.

These limitations are derived from the harm principle developed by that champion of free speech, John Stuart Mill, in On Liberty. It remains a relevant standard even in the coarsened political atmosphere in which we live.

The fact that certain views may arouse indignation or even anger in others is not on its own a ground for suppressing them. Where unjustifiable harm is done, however, the law and ethics step in.