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October 09th 2016 print

Murray Walters

Hate Speech, Actionable and Otherwise

Insult someone in one of the protected categories and you might well find yourself dragged before the courts, slandered, and financially ruined. So, since 18C's supporters seem to imagine everyone else to be foaming bigots, select targets for your venom with great care

18c-2It has been said that legislating against hurt feelings is ridiculous. It is. But where has this notion come from — that hurt feelings based on race and ethnicity are worse than any other, or of a quality that demands special protection and, perhaps, big dollops of financial compensation? And when did the cause of this malady, this new-fashioned thing called ‘hatespeech’ become the halitosis of community discourse —where no-one seems to know they have the problem, but fellow citizens, at least those sure of their own immaculate PC hygiene, turn away in disgust.

I think “hate speech” is just another product of this, golden age of offence-taking, replete with neologisms and redefinition of some old favourites. Take a bow, Julia Gillard, whose lasting contribution to public life will, of course, have nothing to do with her disastrous prime-ministership and all to do with the politically expedient re-definition of misogyny as men wearing blue ties or callously consulting their watches when a woman is whining. Not since Carl Linnaeus, the great Swedish taxonomist of the eighteenth century, have we seen such excitement about the combining of Greek and Latin roots to create new species of hitherto nameless dreads –  homophobia, transphobia and Islamophobia, to name but three. These perils are absolutely everywhere nowadays (or so we are told), hiding in plain sight in households not so much like your own, but certainly like your neighbour’s.

Hate speech, genuine hate speech, was previously heard at white-supremacist rallies. It is now a favourite pastime of bored suburbanites, if you take the word of our self-proclaimed moral betters. Dr Craig Emerson, ex-Labor minister and amateur chanteur, once ridiculed the idea that hate-speakers are lurking everywhere in the suburbs:

“Legislators who make and repeal laws do so where there is an identified problem they consider needs addressing. What is the problem that repeal of section 18C will remedy or at least ameliorate? Who are the punters, cowering in their lounge rooms, repressed by a law that stops them publicly giving a gobful of racial abuse to indigenous Australians and ethnic minorities?” (The Australian 5/4/14)

Subsequently, a feeling in his waters must have told him those gobby punters were not only real but cacophonous little beggars to boot. Re-tweeted by the ABC’s predictably sympatico Julia Baird — would she have been hired by the ABC were she of any other view? — Emerson doubles down on his visions of burning crosses, pointy white hoods and racial hatred, all varieties, instantly on tap

“@bairdjulia Ah, the joys of free speech. Just wait till 18C is amended – it’ll be a cacophony of racial abuse” (@DrCraigEmerson, twitter 2016)


Dr Emerson has a PhD but it seems not everyone with a university education is immune to committing hate speech. Nor does being social-media savvy spare bright young things from the consequences of failing to divine the hate-speech horrors that lurk in their little hearts of darkness.  The notorious Queensland University of Technology 18C case, still before the courts, involves a claim for $250,000 worth of hate-speech hurt. But forget the students for a moment. Rather, imagine the vicarious trauma of the officers of the court who must listen to filth such as this this:

“Just got kicked out of the unsigned ­indigenous computer room. QUT stopping segregation with segregation?”

and wade through ordure of his vile nature:

“I wonder where the white supremacist computer lab is.”

I’ve discovered two types of this new-fashioned “hate speech”: The first is the vulgar-abuse type favoured by rednecks and yobs. Nice people, like Quadrant readers, wouldn’t know any of these snarling, spittle-flecked racists we hear so much about, not personally, but may have inadvertently seen a Youtube clip of a hyperventilating piece of poor white trash screaming at a Muslim woman on a train. This is your archetypal A Current Affair hate spruiker –  ‘Mrs Hate’, if you will. Think here of an overweight, edentulous, nasal-voiced boganette or, perhaps, a grey-haired bigot demanding that a burka’d muslima in an adjoining seat explain why she allows herself to be reduced to a man’s chattel? These are the Mrs Hates that populate the country from coast to coast, each champing at the bit to trot out their intolerance, or so the opponents of repealing 18C would have us believe.

The second sort of ‘hate speech’’ comes from clever dicks, like Andrew Bolt. This is ‘shaming speech’ that, by definition, never occurs on public transport, or out the window of a hot Commodore with a hoon-exhaust, but by cunning wordsmithery. It is an especially virulent form of speech that causes compensable psychological injury. Sadly, the originator of the hate speech may not even know they were the hating sort until their moral deficiency is revealed by a judge (perhaps a former and failed ALP pre-selection candidate). I guess it must be something like being diagnosed with lung cancer when you have never smoked: “Well, I believe you my friend,” the doctor will say, “but I’m afraid the X-rays don’t lie” — or, in the case of our legal system, a judge who  deduces racism where none exists or was intended.

It goes without saying that hate speech must be banned. Banning things is very popular in Australia. Think here of live-animal exports, greyhound racing, late-night alcohol consumption or spit masks on young inmates given to hocking globs of phlegm at their custodians (those masks look very, very bad on TV). Politicians bent on banning something nasty, like hate speech, usually rely on two types of information:

1. A report from a panel that mental illness and suicide rates are high in the group exposed to the hateful behaviour, and

2. A allegedly illustrative anecdote or two

The problem with the first is that suicide rates are always unbearably high in any group or demographic that is the subject of a discussion about suicide. For instance, it is well known that depression and suicide rates are very high among older men, especially widowers. Apply the same logic to that particular demographic and we’d best have no more talk about the travails of lives underwritten by inadequate pensions or — the horror! — any further quoting of Bob Hawke’s remark to an elderly critic that he was “a silly old bugger.” Too much of that and grandad will have his head in the oven.

Politicians love suicide palaver as a discussion-stopper, as in ‘best not to talk about this topic because some people might get so upset they top themselves.’ Bill Shorten has done just that in the ongoing SSM plebiscite debate:

“Let me be as blunt as possible: a ’no’ campaign would be an emotional torment for gay teenagers, and if one child commits suicide over the plebiscite, then that is one too many.”

Curiously, the same concern does not apply to greyhound owners and trainers whose livelihoods have been scuttled by a premier’s imperious edict. It’s not difficult to imagine Mike Baird borrowing from Shorten while adding a twist: ‘Let me be as blunt as possible,’ he might begin, ‘a few people in the industry may commit suicide because their incomes, their families and livelihoods are ruined by this ban, but in the end their anguish is a fair price to save those adorable, skinny dogs.’

Why pick race and ethnicity for special protection? Easy, because as core, immutable, defining personal characteristics they are deemed sacrosanct. That makes racial abuse quite different, from, say, being told you are pig-ugly or socially maladroit. Find yourself in those categories and the message will be to just suck it up. “Chalk it up to the price of privilege, my good fellow,” as our betters might say.

Part of the reason for the narrow focus on race is that, rather obviously, you can often make racial or ethnic identifications by the colour of a person’s skin, features, accent or quaint ethnic attire. Other ‘who they are’, attributes are more difficult to attack with the lacerating venom of the archetypical hate speaker. For instance, to properly abuse homosexuals on the basis of their core identities (what they do in the bedroom) you will probably need to ask a few questions, which is difficult from the window of a passing ute. (The Doppler effect ruins the atmospherics and delivery: “Can I just check if you are queer? Oh you are! Then mince out of town, you big poooofff.”)

Psychological injury by shaming people ‘for who they are’ is so much more common, and more injurious, in everyday life than in any column Andrew Bolt has never written. For instance, how many suicides have occurred because a relationship ended in rejection of someone’s core personhood? What compensation, for example, for an unemployed, middle-aged man whose wife leaves because he talks chiefly of topics in which she has little interest –  his 4WD, maybe, and his habit of ‘mansplaining’ the workings of differentials, air snorkels and low-range transfer boxes. The luvvies of the left would hate him (because he reminds them of Dad, quite possibly; but that’s another story) and would hurt and shame him if he lifted his thick ugly head above the barricades. Poor bugger — shamed and humiliated for ‘who he is’, for falling short of their idealounded person needs to be. His lot will be to suck up such disdain until, eventually, the strangled blood flow through sclerotic coronaries finally stops.

But, to extend our homely example, let’s suppose that, before he dies, this pallid, coronary-in-waiting masculinist bigot manages to tell his newly ‘out’ bisexual daughter that she disgusts him and that she must leave home. As day follows night, she adds two more cuts and one cigarette burn to her forearm. Hurt, humiliated and injured she most certainly is. If only racial vilification were an option for use against this slob of a father. He could be summarily packed off to Commissioner Tim’s office for some counselling and, inevitably, a financial settlement by way of confirming his contrition. Perhaps more regrettably, his daughter’s  inexorable path to becoming a self-referential bore for New Matilda would be confirmed — the real crime in this instance.

Compensation for psychological injury does, of course, happen in other areas of the law. And everywhere it is vexed by the vagaries of psychological causality and pre-existing vulnerability. Pre-existing vulnerability is thought to explain why some people develop debilitating PTSD from trivial traumas, why others are off work for years because of “bullying” whose perception was entirely subjective. That, at least, is the way most people understand it. For instance, if I catastrophically traumatise someone by standing on their toes, not knowing that they were once dangled by those same digits in a garden shed by a wicked stepmother, no-one would suggest that my punishment should take account of my victim’s inability to return to work for, say, the next ten years. The pre-existing trauma was unknown to me, so I would hope to be judged, if judged I must be, on my clumsiness only.

This new offence of hate-speech is tenable only if a pre-existing vulnerability is universally assumed to be present, whether that is the case or not, and whether or not that condition is known to the hate-speaker. The insult may be modest or slight or personally irrelevant, but that counts for nothing when the simple act of racial self-identification brings with it a cache of race memory or group hurt to be automatically tapped, making the escalation of an insult to a catastrophe fait accompli. This remedy is not available to other deserving groups. An equivalent example might be the making of a cruel remark about someone who has suffered sexual abuse, perhaps along the lines of  ‘most people who have been sexually abused really wanted it.’ For starters, that wouldn’t be hate speech; ignorant and asinine, certainly, but not hate speech. However, the plaintiff in the ensuing fictional hate-speech trial would be unable to claim membership of a group with an assumed, fixed, immutable collection of experiences by identifying as an abused person, even though this group is likely to be at least as homogeneous, and probably more, as any racial group where the matter of psychological symptoms of trauma is the issue.

This is pretty weird stuff — and no academic exercise either. The QUT 18C incident occurred in 2013 and is still unresolved. The claimed price tag is $250,000 damages, as quoted in the papers. The alleged hate speech (quoted above) will strike many observers as alarmingly trivial, but that doesn’t matter because the remarks at the centre of this gold-plated legal spat relate to a peculiar personal characteristic — ie., race — that is historically bound to collective vulnerability and hurt. Yet there is another kind of hurt at play here as well. Who among us could endure three years of public litigation and accusation, let alone the threat of a big fine at the end of it all? Who could possible heal from such a prolonged ordeal in the dock?

Ultimately 18C and the new-fashioned hate-speech proscriptions are cack-handed attempts to stop people speaking their minds, even if what they have to say is unpleasant. Section 18C is predicated on selecting a vague biological construct, but mostly a psycho-social one, called ‘race’ to privilege certain people above and against others. It ignores many other personal characteristics that represent collective vulnerability at least as well – old age and victims of sexual abuse to name but two.

Sadly, certain sections of the community will never agree to repeal, or even modify, 18C because they see it is a potent tool to right historical wrongs. That individuals, their lives and happiness become pawns in this process seems not to bother them at all.  They want symbolic struggles and ancestral ledgers balanced, by whoever happens to be part of an identified oppressor caste. If that be university students, then so be it.

Murray Walters is a Brisbane psychiatrist

 

 

 

Comments [20]

  1. gray_rm says:

    Oh dear, reading this worried me greatly.
    Just booed loudly at a ‘welcome to country’ ceremony at the Netball in SYDNEY.
    I’m awaiting Tim Southpossum and the correction officers to knock on the door!

  2. padraic says:

    Phew! Pretty spot on, Murray. Also have you noticed that a lot of lawyers in Parliament used to work for firms that are suing the pants off anything that moves? I wonder if there is a connection, to say nothing of “litigation funders” who seem to surface after we signed the FTA with the USA and instead of better trade in products we opened the litigation gates. One positive is that John Grisham will be able to find new material of an antipodean nature.

  3. Joel B1 says:

    I have a rule for abuse: Abuse is OK as long it concerns a choice that the abused has made themselves.

    Under this rule it is ok for me to abuse (albeit in private and not to his face) my new Mohawk haircutted neighbour. He made the choice to not only culturally appropriate but have such an absurd hair styling on a middle-aged white male. (As it turns out he’s quite a nice guy, except for his sense of fashion)

    However, under this rule it’s not OK for me to call him a pasty-faced, white pig. He didn’t choose to be white.

    So the rule covers many situations, obviously, there are grey areas. Is it OK to shout out “Hey lard-arse” to an overweight person? Under the rule it depends on how much choice they have about being fat. In this case, the varying degrees of causes like society, genetics and others should be considered. Regardless of many grey areas the “Choice” rule provides a valid framework for reasonable abuse.

  4. Keith Kennelly says:

    Damn all people who criticise nose pickers and ear lint eaters. They can’t help themselves.

  5. Jody says:

    “Welcome to Country” has got to be THE most risible ritual today in the public area. On one memorable (or was that ‘less than memorable’?) occasion some overweight indigenous person, dressed like a refugee from St. Vincent de Paul, stood up and called Quentin Brice “your majesty” and her name was Aunty Janette Philips. I was looking for a chair to crawl under; I also laughed because it reminded me of my late mother’s wicked sense of humour about people from the working class trapped in their culture and unable to get out from under it!!!

    Away with “Welcome to Country”, unless it can provide the basis for jokes in the pub after work!!

  6. Ian MacDougall says:

    It goes without saying that hate speech must be banned. Banning things is very popular in Australia. Think here of live-animal exports, greyhound racing, late-night alcohol consumption or spit masks on young inmates given to hocking globs of phlegm at their custodians (those masks look very, very bad on TV)….

    It strikes me that the invitation here is to see bans on live-animal exports, greyhound racing etc as unreasonable. Trouble is, abuse is inherent in the ‘industries’ concerned, which no amount of cynical condescension on the part of Murray Walters can either disguise or overcome.

  7. Ian MacDougall says:

    ianl (or whatever your real name is) I suggest you read the whole Murray Walters piece again, preferably with a dictionary handy. You obviously do not understand the meaning of ‘cynical’ or ‘condescension’.
    Could be a win-win.

    • Warty says:

      I’m with ianl, there Ian M. Your last sentence was a bit of an ad hominem attack. Disagree by all means, but be prepared for a bit of the old medicine bit. I cannot, for the life of me see where he has shown the slightest misunderstanding of ‘cynical’ or ‘condescension’, which you happened to run together, and which he correctly echoed. Perhaps you’d like to question his use of ‘anodyne’ while you are about it. Sorry, I’m sounding narky.
      Now, ianl needs no defending from me or anyone else for that matter, and the only reason I interjected was your implied defence of ABC Four Corners and 7.30 Report stories that are so often responses to inside stories fed them by animal rights groups or other groups on the very fringe of society. The ABC, and I’m sure I don’t need to tell you this, but they’re supposed to be balanced, but their shock/horror stories invariably tell just one side of the event/s. The George Pell and the Don Dale youth detention centre stories were two such appallingly biased stories, designed to further undermine the church, with regard to the first, and topple the Coalition government, with regard to the second (coming as it did shortly before the NT election). The Don Dale story said nothing about the abuse the correction officers suffered on a daily basis. I read a report shortly after the story, perhaps in The Australian, I don’t remember, that revealed the rather telling number of days such officers have had to have off on workers compensation. I remember expressing how exhausting it had been teaching for some twenty years in a top GPS school, and those were not Don Dale kids, far from it. But we had no insight whatsoever into the daily lives of the correction officers, as it would have killed the story.
      Bill Leak’s cartoons pointed out the real source of abuse, and it wasn’t the correction officers, there at Don Dale. So, Ian M. don’t go for ianl’s jugular, he was perhaps simply pointing out the naivety of being taken in by any of the ABC’s stories: they invariably have an underlying agenda. They are invariably sourced from people you wouldn’t be happy to let your daughter go out with (or at least I would hope not). None of us support animal cruelty, but we don’t appreciate being ‘sucked in’ by a beat up.

      • Ian MacDougall says:

        Warty (or whatever your real name is). You may have noticed that ianl (or whatever his real name is) is inclined to stick it to me on just about every occasion he can. I take that to be on ideological grounds, as we clearly have quite different political positions, particularly on climate change. You notice that he leads by accusing me of “a few soothing anodyne comments” followed by “a spiteful ad hom”. This because I opined that Murray Walters displayed “cynical condescension”: that is, simultaneous cynicism and condescension. I think that both are present in the illustrative quotation I supplied for my comment of October 10, 2016 at 3:58 pm. Cynical because it does not take the objections of the opponents of greyhound racing, live exports etc as sincere or at face value, and condescending because Walters in order to do so has to assume his own position to be superior to that of the opponent of greyhound racing (I am one such) and live exports (I am also one such.) Then ianl (or whatever his real name is) follows this up with a suggestion that I have bipolar disorder: an ad hom in the truest sense, and not just a ‘bit of’ a one.

        .

  8. Warty says:

    I’m with ianl, there Ian M. Your last sentence was a bit of an ad hominem attack. Disagree by all means, but be prepared for a bit of the old medicine bit. I cannot, for the life of me see where he has shown the slightest misunderstanding of ‘cynical’ or ‘condescension’, which you happened to run together, and which he correctly echoed. Perhaps you’d like to question his use of ‘anodyne’ while you are about it. Sorry, I’m sounding narky.
    Now, ianl needs no defending from me or anyone else for that matter, and the only reason I interjected was your implied defence of ABC Four Corners and 7.30 Report stories that are so often responses to inside stories fed them by animal rights groups or other groups on the very fringe of society. The ABC, and I’m sure I don’t need to tell you this, but they’re supposed to be balanced, but their shock/horror stories invariably tell just one side of the event/s. The George Pell and the Don Dale youth detention centre stories were two such appallingly biased stories, designed to further undermine the church, with regard to the first, and topple the Coalition government, with regard to the second (coming as it did shortly before the NT election). The Don Dale story said nothing about the abuse the correction officers suffered on a daily basis. I read a report shortly after the story, perhaps in The Australian, I don’t remember, that revealed the rather telling number of days such officers have had to have off on workers compensation. I remember expressing how exhausting it had been teaching for some twenty years in a top GPS school, and those were not Don Dale kids, far from it. But we had no insight whatsoever into the daily lives of the correction officers, as it would have killed the story.
    Bill Leak’s cartoons pointed out the real source of abuse, and it wasn’t the correction officers, there at Don Dale. So, Ian M. don’t go for ianl’s jugular, he was perhaps simply pointing out the naivety of being taken in by any of the ABC’s stories: they invariably have an underlying agenda. They are invariably sourced from people you wouldn’t be happy to let your daughter go out with (or at least I would hope not). None of us support animal cruelty, but we don’t appreciate being ‘sucked in’ by a beat up.

  9. A very enlightening, but frightening, article. I have read that legal disputes [of various sorts] have long consumed well over 10% of the GDP in the USA. With the proliferation of adverts on free to air and on cable TV for a number of ‘ambulance chasing’ law firms as well as the plethora of road side billboards asking me have I been injured at work or in an accident, or have I suffered some sort of ‘discrimination’ causes me to wonder how much of Australia’s GDP is currently ‘consumed’ in law-fare. Is this why we in Australia now have so many new laws for so many topics like the environment or race or sexual preference being created? Is this the socialists latest method of ‘re-distributing’ wealth from those who actually create wealth to those who don’t, won’t or can’t? Or is it merely job creation for the over-abundance of lawyer being churned out of our Unis?

    • padraic says:

      I think deandsel reflects a lot of what Australians are trying to come to terms with. I believe we are in a time of cultural change in the legal profession (and others) as well as the production of legislation. For me it goes back to the time when we were part of the British Empire and the wider Anglosphere which included America, say the early 1800s. The Industrial Revolution was in full bloom in England with consequent social problems. At that time, in both the Empire and USA the legislative emphasis was on law and order. In relation to other aspects of human activity at that time basically the attitude was let things happen and if something goes wrong we will try and fix it. By the mid-1800′s when things had become more prosperous and the middle classes had become enfranchised, the UK government began looking more at other issues. J.S.Mill was one of the leading lights in this change of legislative direction. His philosophy had several angles to it and these are outlined in his essay “on Liberty” among others. Most are familiar about the role of “self-regarding” acts as a factor as to whether to legislate or not. This appealed to the laissez-faire protagonists. What they did not like was his other concept that the state needs to legislate in order to take antecedent precautions to prevent harm in the community. It was this concept that led to more social legislation in Britain and its Empire resulting in, for example, legislation re working conditions in mining, cotton and woolen mills etc. It also established standards for the various professions, proper labelling of dangerous products and qualified access to them, and so forth – things we take for normal today. The legislation provided for severe penalties for non-compliance and the various governments had a system of inspectors to monitor and report on compliance. Under this system,lawyers did not get much of a “look in” because people looked to the government to ensure their safety. The Americans, being an independent country, did not follow this line, whereas what are now Commonwealth countries used this UK legislation until such time as they had their own governments and enacted their own legislation, but in the same preventive spirit as in the UK. The UK legislative culture had persisted in its former colonies, but not in America. The Americans preferred the pre-Mill style whereby you let bad things happen and then tried to clean it up, instead of the Mill prevention model. This meant a lighter government hand and thus the private lawyers took up the slack and used suing as a means of stopping more bad things happening in the future. What has happened over time is that the Americans have adopted some of the Mill culture and the rest of the Anglosphere has adopted some of their legislative culture. For example, we never used to allow professions to advertise – now we do, since the FTA. The reason for not advertising was to prevent competition between practitioners (legal, medical etc) that was based on price (or material gain as a primary motive), the theory being that professionals would have to compete on professional standards in order to attract clients, and thus reducing the temptation to “overservice” which is a real issue when price competition is the driving force and unbridled competition forces incomes down. Thus you had a market-driven mechanism to keep professional standards high. Where all this is going to lead, I don’t know, but this subtle change is having a dramatic effect on how we look at things in Australia.

  10. Homer Sapien says:

    Enjoyed the article by Murray Walters as usual. Just can’t see the sense in dog racing. If anyone enjoys to watch a bunch of flea bags running in circles, they need their heads read. Maybe Dr Walters could help? To call it an industry is contentious to say the least. May be we could export this “industry” to third world countries to lighten their burden and throw in toad and cockroach racing for free?