Michael A. Sherlock: Author, Speaker, Human Rights Activist – Founder and Chair, Human Rights for Atheists, Agnostics and Secularists
Michael Dutta: Former Teacher, Lawyer, and Activist
(This pamphlet has been edited for the blog)
“I see offence as the collateral damage of free speech. I hate the thought of a person’s ideas being modified or even hushed because someone somewhere might not like to hear them. Outside actually breaking the law or causing someone physical harm “hurting someone’s feelings” is almost impossible to objectively quantify.” ~Ricky Gervais
Three Potential and Possible Problems With the ‘Offend’ and ‘Insult’ Elements in S. 18C
- 18C in its present construction provides a useful platform to otherwise obscure and hateful voices by drawing undeserved media attention: See Jones v Toben (2002).
- 18C in its present construction turns targets of this type of legislation into perceived “martyrs for free speech”: See Jones v Toben (2002). Malcolm X once said: “If you’re not careful, the newspapers will have you hating the people who are being oppressed, and loving the people who are doing the oppressing”. Such distortion in thinking is potentially increased by turning oppressors into martyrs and the oppressed into perceived oppressors.
- The neutrality of the language (race, colour or national or ethnic origin) coupled with the broad definitions of ‘offend’ and ‘insult’ (discussed below) could eventually become detrimental to minorities if Australia undergoes an increased shift to the far-right. This shift to the far-right is presently underway in Europe and America, as well as in Australia with the more fervent rebirth of Pauline Hanson’s One Nation Party – See: Police v A Child (Magistrate Auty, unreported, 14 Sept 2006), in which a 16-year-old Aboriginal girl was charged under the Racial Discrimination Act for kicking a white woman and calling her a “white slut”. The girl was charged with assault but the judge held that the utterance wasn’t racial discrimination on the basis that the girl’s slur was deemed “petty name calling”. Regardless of your opinions on the outcome of this case, had this case been tried in a far-right political and legal climate, the verdict regarding the application of the S. 18C may have been quite different. Again, the neutrality and the broad legal definitions of ‘offend’ and ‘insult’ could, in a far-right climate, potentially be employed to protect members of the majority over minority groups.
Legal Definitions: ‘Offend’ & ‘Insult’
‘Offend’ and ‘Insult’ were interpreted in accordance with their (broad) ordinary meanings (based on Macquarie Dictionary 2nd Ed. & Oxford Dictionary 2nd Ed. definitions) in Jones v Toben (2002):
- Offend (Legal Definition): “to irritate in mind or feelings; cause resentful displeasure in” (Macquarie) – / –“to hurt or wound the feelings or susceptibilities of; to be displeasing to or disagreeable to; to vex, annoy, displease, anger; now To excite a feeling of personal annoyance, resentment, or disgust in (any one). (Now the chief sense).” (Oxford)
- Insult (Legal Definition): “to treat insolently or with contemptuous rudeness, affront.” (Macquarie) – / –“to assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage.” (Oxford)
These legal definitions are far too broad and have assisted in promoting and encouraging a culture of outrage which currently underscores and undermines the necessary discourse between competing voices in western politics.
Case Law Example of ‘Outrage Culture’: Prior v Queensland University of Technology & Ors (2016)
In Prior, an Aboriginal teacher sued a student for $247,570.52 for posting what she perceived to be an offensive statement on Facebook. The Facebook post was in fact benign and actually raised a debatable issue. The student’s (Alex Wood) Facebook post read: “Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?” As a result of the ‘offend’ element within S. 18C of the RDA, this case was taken seriously at the expense of both the public (monopolizing valuable court time and resources – 3 years) and all of the parties concerned (time, money, and stress). In such cases, legal aid is unavailable, thus other students at QUT who were not fortunate enough to receive pro bono representation had to settle with Mrs Prior for $5,000 each, even though some may have otherwise been able to successfully defend themselves had they possessed the financial resources to do so. Also, damage to reputation (being branded a racist), whether the case be successful or not, is another factor which should be considered when contemplating the section as it presently stands. One of the students in the QUT case (Calum Thwaites) — notwithstanding the successful demonstration of his innocence regarding a demonstrably false allegation made against him by Mrs Prior – that he posted “ITT Niggers” — has felt compelled to forgo his career ambition of becoming a teacher because anyone can now google his name and (falsely) associate him with reputation-destroying racism.
Examples of offensive speech
What offends and insults an individual and/or group is too subjective to be efficiently, effectively, and consistently regulated, especially in a pluralistic society such as Australia. The subjectivity of the ‘offend’ and ‘insult’ elements within S. 18C can be demonstrated by the following examples: If in the days of racial segregation in the US a person had said, “I think blacks and whites should be able to drink from the same fountains, attend the same schools and share the same rights”, that would have been deemed offensive speech. If in the 1300s in England a person said, “I think everyone should be able to read the Bible, even the poor”, that would have been regarded as offensive speech, as was the case with John Wycliffe who was de-platformed and banished from Oxford University for doing so. If prior to women’s suffrage in the US and Australia you were to suggest that women had an inalienable human right to vote and participate in the public sphere, that would have been regarded as offensive speech. If in countries where female genital mutilation is practiced you were to suggest that the practice is unnecessary and barbaric, that would be regarded as offensive speech. If you were in today’s Pakistan and a number of other Muslim-majority countries you were to make honest yet critical remarks about the “Prophet” Muhammad, that would be regarded as so offensive that you would be subject to the death penalty, or imprisonment. If you were to suggest in today’s Saudi Arabia that women are equal to men and should require neither a man’s permission nor his accompaniment to leave her house, that would be regarded as offensive speech. There are 13 countries around the world that regard the expression of disbelief in a deity as so offensive that one dare not express such disbelief lest they be willing to suffer the death penalty.
The Benefits of Keeping ‘Offend’ and ‘Insult’ in S. 18C
Despite being a multicultural, pluralistic society, some voices in Australian society are more amplified than others. Thus, it may be argued that keeping offend and insult in S. 18C affords necessary protection to marginalized groups whose voices and concerns are difficult to hear over the more amplified voices of the dominant majority. Further, it may be argued that given the relatively recent normalization of anti-Muslim, anti-migrant and anti-refugee bigotry, which appears to be sweeping western democratic countries as a result of the rise of far-right political parties and commentators, minorities, particularly Muslims, are increasingly becoming the targets of hate speech, which, in some instances have inspired and even incited hate crimes against Muslims (See: Perth Mosque Attack, 2016 & Quebec City Mosque Attack, 2017, etc.). Further still, S. 18D does provide protections to free speech in a variety of ‘good faith’ contexts (artistic expression, academic discourse, scientific purposes, and fair comments). These protections must be considered when discussing the limitations imposed on free speech within S. 18C. Finally, it may be argued that in pluralistic societies, hate speech threatens the social fabric by undermining unity, cohesion, and stability.
Having made these concessions, case law clearly demonstrates that the ‘offend’ and ‘insult’ elements within the S. 18C have proved problematic for a number of reasons.
The Benefits of deleting ‘offend’ and ‘insult’ from S. 18C
Speech which offends one person may please and even alleviate the psychological suffering another, and may even benefit society as a whole. When Black Lives Matter began speaking out against the disproportionately severe treatment African Americans suffered from police, it offended large, predominantly white portions of US society, but it would be extremely difficult to argue that in this instance the negative psychological experiences of those offended outweighed the benefits of the free expression of this important social issue, even though in a few isolated incidents, the Black Lives Matter movement inadvertently and indirectly inspired acts of violence and hate against white civilians and police officers.
Each individual’s threshold for offense varies, making the inclusion of ‘offend’ and ‘insult’ in S. 18C potentially problematic in terms of enforcement, as demonstrated in Prior v Queensland University of Technology & Ors (2016). Further still, if the legal system treats adults like fragile and oversensitive children and encourages people to become offended and insulted by legislating against impermanent negative psychological experiences, the costs of fostering and maintaining a hypersensitive and irrational culture of grievance and outrage could potentially outweigh the benefits of preventing offence.
Proponents of the inclusion of ‘offend’ and ‘insult’ in S. 18C argue that such elements protect harmony in pluralistic societies, yet, as is the case with the application of blasphemy laws where they remain in force, the enforcement of such laws in pluralistic societies generally causes increased chaos and divisiveness (See: Pakistan), rather than allowing autonomous adults to peacefully and intellectually deal with speech they find personally offensive. Speech-inhibiting laws cause this chaos and divisiveness by vindicating one group’s values over another’s, thereby turning the targets of such laws into emotionally evocative martyrs of free speech, even when that status is unwarranted and even detrimental to society.
The answer to hate speech and offensive speech isn’t censorship, it is superlative speech. Bad ideas must be allowed to come to the surface so they can be challenged and ultimately defeated. If history has taught us anything, it is that when conversation, even robust and heated conversation, breaks down, violence ensues. Take from an angry and even vile person the right to express their anger and vileness and you forfeit the chance to rebut and refute arguments intellectually, and at the same time leave such disturbed individuals and/or groups with only one perceived outlet for expression, violence.
If we subtract the emotional component from discussions concerning bigotry and examine bigotry rationally, it becomes clear that bigotry is the result of ignorant and errant thought processes. Bigotry relies almost entirely on stereotyping, which is a heuristic thought process, or shortcut to thinking. in other words, bigotry rests on stereotypes which represent poor thinking, so we must ask ourselves: is it appropriate to prosecute people for expressing errant opinions, particularly given the fact that such tenuous positions are so easy to refute and demolish intellectually? Wouldn’t it be better to foster a more intellectual society in which the people, through rigorous debate and intellectual intercourse, freely determine which ideas will survive and which ideas will perish, rather than legally forbidding certain topics for the sake of circumventing potential offence, which, as stated above, is little more than an impermanent negative psychological experience?
Present S. 18C, 18D vs Proposed Amendment of S. 18
Michael Dutta and I are of the opinion that the proposed amended to S. 18 of the Racial Discrimination Act (1975) provides necessary and sufficient protection for people who are the targets of vilifying, humiliating, and hate-inducing speech, without stifling open and honest debate, discussion and interaction between competing voices and opinions that exist within a pluralistic Australian society. Further, we are of the opinion that the amendment avoids some of the trappings discussed above (preservation of valuable court time, otherwise monopolized by grievance cases – prevention of fostering and encouraging a culture of outrage and offense – prevention of unfair and inequitable legal processes that unnecessarily burden defendants who do not deserve it (See Prior v Queensland University of Technology & Ors (2016).)
Neither Michael Dutta nor myself believe we possess the definitive answer on the balancing act between protecting free speech and protecting the rights of marginalized members of Australian society. Therefore, we humbly offer these arguments for due consideration and contemplation. Our hope in presenting these arguments is to work together with competing opinions in order to arrive at a solution beneficial to marginalized members of Australian society and Australian society in general.
We humbly thank you for considering our point of view on this important issue.
Michael A. Sherlock
Email Contact: firstname.lastname@example.org
Human Rights for Atheists, Agnostics and Secularists Website: (http://www.humanrightsfaas.org)
Email Contact: email@example.com
18C, Racial Discrimination Act (1975)
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act 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.
18D, Racial Discrimination Act (1975)
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
Proposed Repeal and Amendment – Freedom of Speech (Repeal of S. 18C) Bill 2014
The Racial Discrimination Act 1975 is amended as follows:
- Section 18C is repealed. 2. Sections 18B, 18D and 18E are also repealed. 3. The following section is inserted:
“(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely:
(i) to vilify another person or a group of persons; or
(ii) to intimidate another person or a group of persons,
(b) the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.
(2) For the purposes of this section:
(a) vilify means to incite hatred against a person or a group of persons;
(b) intimidate means to cause fear of physical harm:
(i) to a person; or (ii) to the property of a person; or (iii) to the members of a group of persons.
(3) Whether an act is reasonably likely to have the effect specified in sub-section (1)(a) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.
(4) This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”
By Michael A. Sherlock
Free speech must include the right to offend. Granted, there are limitations upon free speech which do serve valuable and necessary functions – such as the prohibition against incitement to violence, or the prohibition concerning the deliberate causing of a panic that would likely result in imminent injury, etc – yet such limitations are not a valid basis for arguments that seek to increase restrictions on free speech. Put simply, the existence of common-sense limitations on free speech in no way testify to the alleged benefits of restricting speech that offends or hurts people’s feelings. Feelings should never be placed above fundamental human rights, particularly when the human right in question is the primary mechanism by which societies and cultures progress. George Bernard Shaw penned upon the lips of one of his fictional characters, “All great truths begin as blasphemies”. The validity of this noble and enlightened sentiment has been documented throughout the ages, from Galileo’s offensive yet useful and correct advancement of the heliocentric solar system to the advent of the then offensive germ theory of disease, which challenged and offended the consensus of the day that frequently fatally held the supernatural realm responsible for germs and diseases. The central point here is that the benefits of offense far outweigh the burdens. Feelings subside and recover, yet a stagnant or even regressive social order is much more dangerous and difficult to cure. Cultures and societies that place the greatest restrictions on free speech tend to be least harmonious and the most ignorant, (Trump’s Neo-American revolution being a possible outlier) and I think there is an obvious reason for this phenomenon. Free speech is the means by which the echo chambers of stale and recycled beliefs and opinions are, often reluctantly, shattered, which, as the Secular Enlightenment demonstrates, creates an environment conducive to the intellectual and moral advancement of our species. Where would the Women’s Rights and Civil Rights movements be without ‘offensive’ free speech? Where would human rights be without the blasphemous expressions of the Enlightenment? Where would science be today without the inalienable human right to express offensive ideas and hypotheses? These are just a few of the reasons why free speech is so crucial.
Free speech must include the right to offend, even if that freedom is disingenuously employed by hate mongers and misanthropes. Think about it this way, wouldn’t you rather be able to identify and challenge hate when and where it rears its ugly head, rather than have it fester, rankle and ferment beneath the surface of society in more subtle and insidious forms – forms which cannot be so easily identified and extinguished – forms which eventually bubble up and mutate into noxious and irrational expressions of insane human violence? Free speech doesn’t merely act as a necessary pressure valve – allowing ignorant, bigoted, hateful and stupid people a chance to vent and then be intellectually criticised, mocked and ridiculed for expressing stupid and/or hateful ideas – but it also acts as an open plain upon which harmful or hateful opinions are less able to hide and brew beneath the surface until they inevitably explode into violence, or victorious protest votes for a megalomaniacal, incompetent, angry and corrupt (orange) Muppet. I think most people would agree that it is far better to hear hate expressed through speech than to witness hate expressed through violence. Some may counter, “well, speech can incite violence”, to which I would respond, yes, and as I mentioned above, we have incitement laws that afford us safeguards against such abuses. However, notwithstanding these common-sense restrictions, free speech is the bedrock of civil society, because if history has taught us anything, it is that when people are forbidden from expressing themselves verbally and intellectually, they commonly resort to the only available means of expression, violence.
Finally, if you believe that adults in western liberal democracies are not responsible enough to be given the freedom of speech, you will be forced to identify a suitable authority who is, in your own subjective and biased opinion, capable of governing the type(s) of speech you personally prefer. No doubt here you will come into conflict with the competing interests of people who do not share your personal values and beliefs, which will inevitably cause the kinds of conflicts absent within societies that value and protect this cornerstone human right. In reality, however, speech-inhibiting regimes and societies generally measure offense against the dominant ideology, thereby suppressing dissent and quelling the progressive tides of change necessary for the regime or society to move forward with the times. Modern Islamic nations are great case studies for such stagnation and regression occasioned by speech-hindering policies and doctrines. In the words of Ayaan Hirsi Ali: “Only through rigorous scrutiny can cultures progress, and only through free speech can rigorous scrutiny occur”.