Writers and artists are often politically outspoken – but when should we view an opinion or artwork as genuinely harmful?

Within public debate around free speech and its limits there has long been a view that artistic expression deserves especially rigorous protection. This is because it is a medium of indirect communication, open to multiple interpretations. There is a long tradition of art being used to critique society and politics.

Artists themselves are aware of the robust protection they require in order to produce their works. Many feel a responsibility to use their work and their platforms to raise awareness of voices and perspectives outside the mainstream. Writers and artists often critique their societies and seek to provoke.

This issue has again arisen, following the recent decision by Creative Australia to rescind the contract of artist Khaled Sabsabi and curator Michael D’Agostino, after the funding body had chosen Sabsabi to represent Australia at the 2026 Venice Biennale.

The decision was said to be influenced by discussion in the Senate of a 2006 artwork referencing the 9/11 terror attacks. Creative Australia claimed they made the decision to avoid the process being “mired in the worst kind of divisive debate”.

This week, Kathy Shand resigned from her position as chair of the Sydney Writers’ Festival. She stated that “artistic freedom and independence are to be guarded and cherished”, but expressed concern the festival was being compromised “as a safe and inclusive space for all audiences”.

Shand’s resignation follows controversies over programming decisions involving politically outspoken writers at the Adelaide Writers Festival in 2023 and the State Library of Victoria in 2024.

Last week, the National Gallery of Australia faced accusations of censorship when it covered sections of an artwork featuring a Palestinian flag, citing a security risk.

But where does art cross the line from thought-provoking into genuinely harmful?

Artists and artistic works deserve strong, robust protection under the auspices of free speech because they provoke us to think, imagine, contemplate and critique. They are central to the principle of free speech, the purpose of which is to enable as many people as possible to engage in the information sharing, dialogue and debate that are necessary to make informed choices about how to live well.

This is what is called the “democratic argument” in favour of free speech. Free speech is vital because it enables us to become informed citizens who, individually and collectively, can enact self-governance.

The legal context

Robust protection for artistic endeavours is recognised in relevant Australian law. Hate speech laws (anti-vilification laws) in Australia, for example, contain a specific exemption for artistic speech.

While many will recall the debate over section 18C of the federal Racial Discrimination Act and its restrictions on racist hate speech, few talk about the accompanying section 18D, which provides exemptions for, among other things, “the performance, exhibition or distribution of an artistic work” that is done reasonably and in good faith. Other jurisdictions’ anti-vilification laws contain similar exemptions.

There is strong public support in Australia for anti-vilification laws that protect systemically vulnerable and marginalised communities from speech-based harms.

At the same time, however, there is a constant tendency for democratic governments to overreach in the regulation of speech. We have seen plenty of evidence of this in recent years in Australia, with growing attempts to prevent legitimate, peaceful, public protest. This has included the changes in New South Wales in 2022 that criminalised disruption to transport and infrastructure.

Weaponising free speech

More concerningly, there is a tendency in many democracies globally in this political moment to weaponise the idea of free speech. This occurs when political or corporate leaders utilise the mantra of “free speech” to declare that they should be able to say anything they want to say, regardless of its substantive harm to individuals or democratic institutions and norms.

The same people who make this argument will often deride those who speak of inequality as being “woke” and call for limits on their speech.

In the United States, this phenomenon has resulted in the banning of books in schools and the removal of terminology about climate change and diversity, equity and inclusion from government programs and funding.

These actions put free speech at risk, because the conception of “free speech” being lauded corrodes and erodes democratic institutions to the detriment of us all.

Harm or safety?

There are different understandings of when something is genuinely harmful. Usually, when people speak of “safety”, they are speaking about whether or not expression crosses the line into genuine, substantive public harm. When people speak of “inclusion”, they are usually speaking about how to create an atmosphere where people can express their views, interact and build their understanding, while remaining mindful of others’ lived experiences.

But these are nebulous terms. When one person uses the term “safety” they may mean something quite different from someone else.

It helps to think of examples. Having one’s feelings hurt may harm a person’s relationship with other people or their feeling of belonging within a community. But these are not types of harm that would reach the threshold of legitimate government intervention. Nor would they warrant an intervention as serious as rescinding an artistic contract, given the provocative role of art in our society.

The same goes for expressing opinions a person disagrees with. It may upset them, it may even make them angry, but this is not an actionable “harm” in any real sense. It is a normal part of life. It is certainly not something that warrants a regulatory or government response, nor would it be a legitimate basis for an institution to rescind an artistic contract.

None of this means that free speech is absolute. In all democratic societies there are limits imposed on speech. There are types of expression that can and do harm systemically. They perpetuate and carry out discrimination against those who are vulnerable to systemic harms in that context. This is called “hate speech”.

A person is harmed by hate speech when it ranks them as inferior, denies them rights and disempowers them, in a context where that person is vulnerable to the systemic harm being enacted.

Ironically, public debate on free speech in Australia has increased considerably over the last ten years, yet understanding of when to prioritise free speech and when to take action against genuinely harmful speech has declined. People are confused over where to draw the line, and fearful of being dragged into a bruising debate.

The way out of this is to reaffirm the general importance of free speech, as well as the special importance of art as a thought-provoking and critical medium. Harm needs to be narrowly understood. We need to recognise where it is substantive and genuine enough to warrant restriction. Where it occurs, it should be immediately addressed to prevent its recurrence and provide support to those targeted. At the same time, public debate – in which artists play a crucial role – cannot be limited to ensuring everyone feels comfortable, or else we will all be the poorer for it.