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April 03rd 2014 print

L W Maher

Eleven Myths Concerning 18C

Had the Romans adopted our current law's determination to save the sensitive and litigious from distress, the Pharisees would not have had to tolerate the enmity and harsh words of an upstart preacher from Galilee

gagged speechMuch of the argument supporting retention of Section 18C of the Commonwealth Racial Discrimination Act ignores or misstates the general law affecting controversial speech and thereby fails to appreciate the nature and extent of the backward step which enactment of Section 18C effected. Among the myths and misconceptions are the following:

MYTH 1:Hate speech” is evil.

The most evocative defence of 18C is that it targets something which is uniquely indefensible, namely, race-based “hate speech”. However, that rhetorical label is impenetrably obscure. “Hatred” is an ordinary English word (and human emotion) meaning “intense dislike”. As for qualifiers like “intense”, how long is a piece of string?

There is nothing intrinsically wrong about speech which expresses intense dislike. If, like H. L. Mencken, I express hatred for chiropractic, it does not necessarily follow (as it apparently did for Mencken) that I hate all chiropractors or that I am inciting such hatred (see Myth #5). What is also overlooked is that the law of defamation (of which, more below) explicitly permits speech which, judged objectively, is productive of hatred, ridicule and contempt. The ritualised general denunciation of “hate speech” is singularly uninstructive.

MYTH 2: Vilification of the vulnerable.

“Hate speech” is said to be different because it involves something described by another abstraction, “vilification”, which in everyday usage refers to further abstractions: abuse, degradation or revilement. Whether we like it or not, vilification is a part of public life in a free and open society. In earlier times, no less a person than Christ resorted to vilification in his condemnation of the hypocrisy of the Pharisees.

The postmodern rationale for 18C is that the expression of menacing bigotry based on race, colour or national or ethnic origin detrimentally affects entire social groups which need privileged legal protection from irksome speech because their “identity” makes them innately vulnerable. It is said that it diminishes their dignity,self-worth and sense of belonging to the community. This is the latest in a long line of ideological pretexts for censorship. Worse, it is patronising in the extreme.

MYTH 3: Unique harm.

One principle of the vulnerability dogma is that the collective harm of (selected forms) of “hate speech” calls for collective redress. This is completely at odds with pre-existing law which, regardless of “identity”, provides a remedy for any person subjected to intentional (or foreseeable negligent) infliction of psychological harm. However, there has to be medical evidence showing that the insult to the individual psyche has produced a recognized disorder. And allowance is made for the universal human standard of fortitude in the face of distressing speech, which acts as a filter to prevent extravagant claims. The collective harm of “hate speech” is simply imputed, as the dogma dictates. Despite all the contrary claims, Section 18c is concerned only with hurt feelings, albeit across a range of varying personal intensity.

MYTH 4: Older offensive speech laws.

Section 18C makes unlawful any public act “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people [which is done] because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group”. Even its most zealous defenders acknowledge that  18C cannot be given a literal reading. Thus is it it is said that it catches only “profound and serious effects”. But according to what criteria? And how, in advance of speaking, is a person to have any sensible idea “in all the circumstances” of what 18C forbids and permits?

For more than a century, courts have grappled with the obscurity of bare (and qualified) prohibitions on speech which is said to be “offensive”, “insulting”, “humiliating”, “intimidating”, “indecent”, “objectionable”, “threatening”, “annoying” and so on. The major lesson of the long-standing prohibitions on “offensive” speech is that they have regularly been used to suppress dissent and eccentricity.

MYTH 5: Precursor to violence.

When introduced by the Keating Government in 1995, 18C was said to be necessary to suppress racist violence. This was, and remains, a specious argument. First, the foundation of the argument was the rhetorical claim that racist words were equivalent to (and sometimes worse than) actual violence. Second, the idea that the risk of incurring civil liability would deter physical violence was (and remains) far-fetched and fanciful. Third, the existing AND comprehensive collection of criminal law offences against the person applies regardless of motivation.

The hyperbole of the “speech is violence” thesis has intensified. In its most recent Australian Human Rights Commission (AHRC) manifestation, it has been said that 18C is needed because genocide doesn’t begin with violence, it begins with words. Whether or not that claim is historically accurate, most Australians would be taken aback (possibly even offended) to be informed by their government that 18C effectively stands between them and their propensity to participate in mass murder.

The case for 18C makes much of the word “incitement” — a concept well-known in the criminal law. The best cautionary note about penalising “dangerous speech” because of its alleged potential to produce violence was sounded by US Supreme Court Justice Louis D Brandeis during the first anti-communist scare in the United States in the 1920s:

“Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration.”

MYTH 6: Multicultural “diversity” protects free speech.

Abstractions such as “respect”, “dignity”, “identity”, “difference”, “cohesion”, “harmony”, “belonging” and “diversity” permeate the modern pro-censorship vocabulary. In Eatock v Bolt (2011), Justice Bromberg of the Federal Court of Australia held that, properly construed, 18C applied to redress insults to those worthy personal/social characteristics. The inherent contradiction in 18C, not ameliorated in the slightest degree by the compounding obscurity of the exemptions in  18D, is that the enforced diversity of 18C is exacted at the price of curbing diversity of opinion.

The all-pervasive disinclination of the AHRC and its predecessor to emphasise the central role of dissent in Australian democracy and the quivering lip service paid by it over the years to free speech helps to explain its use of extravagant language to laud Australian multiculturalism. The result has been that any suggestion that multiculturalism can have serious adverse social effects is heresy.

However, the heresy has been voiced at high levels. Using words of exquisite diplomatic precision, not yet noticed by the mainstream media, the inaugural Independent National Security Legislation Monitor (Mr Bret Walker SC) referred in one of his annual reports to the fact that Australia is afflicted by imported cultural, ethnic and religious identifications and beliefs “which the successes of Australian multiculturalism could not conceal”.

MYTH 7: A safer Australia?

If Eatock v Bolt can be said to exemplify the AHRC claim that 18C has made Australia a safer place for all Australians to live, it has produced grotesque incoherence in the reality of the law of free speech. The capricious character of 18C becomes glaringly obvious when Andrew Bolt can be penalised for his criticism and, at the same time, public exhortations that persons be put to death on ethno-religious grounds — as in, “Behead Those Who Insult Islam/the Prophet” — pass without so much as a peep from barrackers for retention of 18C. In the face such hate-drenched ethno-religious fanaticism, the capacity of Australians not to succumb to the age-old urge to shut people up is a much better indicator of the good health of the Australian polity than the hyperbole and neo-puritan righteousness which underpins much of the opposition to repeal of s18C.

MYTH 8: The defamation analogy: true or false?

In the light of Justice Bromberg’s factual findings in Eatock v Bolt, it is arguable that most, if not all, the applicants in that case had a strong defamation claim against Bolt and his employer. It is unlikely that they would have been entitled to an injunctive order. That is but one of many points of departure supporting the contention that the law of defamation is far more accommodating of all controversial speech (not just speech about race, colour, and national or ethnic origin) than 18C is. First, as a general rule, the truth trumps all in a defamation case. Secondly, so far as a defamatory comment is concerned, the law is intended to protect the expression of honestly held opinions and judgments which can and do “offend, insult, humiliate or intimidate” without the need, as in the case of 18C, to satisfy the very restrictive “reasonableness” and “good faith” tests in 18D. Thirdly, vulgar abuse (and satire), racial or otherwise, is capable of being treated as such and to be beyond the reach of defamation liability.

MYTH 9: Symbolism and “soft” sanctions.

The claims that 18C serves an important symbolic function and does not involve any element of censorship are also misconceived. To impose legal liability simply to make a symbolic or educational legislative point is an affront to the rule of law. It would have been open to the Parliament to pass a resolution and then to rely on the power of persuasion. The claim that most complaints under 18C are dealt with in mediation pinpoints a fundamental flaw not a virtue. The offending speaker is, in effect, compelled to explain his or her thinking and words in what is a form of State-enforced re-education and, if unwilling to do so, faces the prospect of having to defend his or her ideas and opinions in a civil action.

MYTH 10: Efficacy.

Section 18C has been hailed as a great success. At the same time, it has been said that there has been a steep increase in complaints. Given the AHRC practice of treating a perception of racist conduct as “racism”, the total number of complaints in a nation of 23 million is strikingly low. Paradoxically, the AHRC web site boasts that Australian multiculturalism has been a grand/remarkable success, and nothing short of a social miracle (if not yet a complete triumph). This having your cake and eating it too stance rather buttresses the case for repeal of 18C.

MYTH 11: Beware the US First Amendment’s “absolutism”!

The argument that repeal of 18C would be a victory for undesirable First Amendment absolutism is a straw construct. The First Amendment to the US Constitution relevantly provides “Congress shall make no law … abridging the freedom of speech, or of the press…” In truth, and notwithstanding its commendable brevity, the First Amendment as interpreted and applied permits many types of abridgments of free speech, provided that they observe clear minimum requirements at the forefront of which is content neutrality. The principle that under the First Amendment there is no such thing as a false idea bars the enactment of “hate speech” abridgments (Justice Alito being the lone dissenter on the present Supreme Court). It protects the rights of everyone, equally.

If this is “free speech absolutism”, Australians should applaud it.

 

L. W. Maher is a Melbourne barrister