Hate Speech, Actionable and Otherwise

It 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