The Right to Express Bigotry: Red Light or Green
Thursday 27 March 2014 @ 11.21 a.m. | IP & Media | Judiciary, Legal Profession & Procedure
In a passionate speech no doubt drawing on the "Age of Enlightenment", the Federal Attorney General George Brandis (the Attorney) was recently on his feet in the Federal Senate (Monday, 24 March 2014) defending the average citizen's right to have and express bigoted ideas. An oration reported as following in the steps of Voltaire by putting the argument that in a democratic society true free speech must follow the maxim attributed to the famous philosopher and thinker, namely: "I disapprove of what you say, but I will defend to the death your right to say it".
Background
As we have posted in a previous article the Attorney and his government are of the view that section 18C of the Racial Discrimination Act 1975 (Cth) (the Act) which proscribes so called offensive behaviour because of "race, colour or national or ethnic origin" should be repealed and/or modified.
Is the Right to Bigotry Argument Plausible?
The Attorney is quoted as saying this was "at heart a free speech issue" and limitations on the Act "needed to be crafted as narrowly as possible". Further, the Attorney is of the view that racist abuse would not fall within the proposed exemption and "racial vilification" would always capture the concept of Holocaust denial for example. The Attorney is reported as telling ABC radio:
"We want to protect racial minorities from the core concept of racism. The core concept of racism is the incitement of racial hatred or the causing of fear because of a person's race, . . ."
Dr Peter Balint (lecturer in politics at UNSW) writing in The Age says:
"Where Brandis is wrong, or at least unjustifiably selective, is on what follows from this right. In his attempt to repeal section 18C of the Racial Discrimination Act, Brandis is using this 'right to be a bigot' to allow people who have bigoted views to express them in speech. This is the common justification of free speech: freedom of conscience is meaningless without being able to act on it in some way".
To this point, the Attorney's point is valid, but, as Professor Balint and others point out, where problems arise is that while there is a desire to allow conscience to be entirely free, actions, as the Professor says, ". . . that we take on behalf of our conscience are an entirely different matter. These actions affect other people, and thus their interests need also to be considered before giving carte blanche to free speech".
Two arguments are offered to challenge the notion of a "right to bigotry".
The first argument challenges the notion that racist or bigoted commentary only cause "mere offence" rather than real harm or damage. To deflect racist comment as merely insulting or to treat it as something causing a "mere offence" is as Professor Balint says, "to deeply and tragically misunderstand the nature of racism". Racism affects the most vulnerable and impedes a socially equitable and prosperous society. The harm done by racism has a greater effect than "mere offence".
The second argument points out that it is inconsistent and somewhat odd to argue racial comments and slurs are permissible in the area of racial discrimination law but then to proscribe them in other areas like defamation laws where racist comments and slurs might be prosecuted even if proven to be true. Indeed, free speech is important in a free society, as the press often tells us it allows them to question, to investigate and to discover the truth, but why then only remove section 18C of the Act? Why not attempt also to relax defamation and slander laws and/or any of the state laws that prohibit the same type of racist speech?
Reaction
The Federal Labor Opposition, the Greens and various human rights groups are reported in the press as fearing that the proposed amendments to the Act will "open the floodgates of racism and bigotry".
The Prime Minister is reported as defending his government against criticism of the measure by saying that ". . . the government will maintain a 'red light' against bigotry in a way that doesn't curb free speech". Though one might ponder how removal of the traffic lights will make it possible to maintain the said "red light" and further, one might also question whether removal of the traffic lights might not actually work as a "green light" for those inclined to racist and bigoted views.
SBS reports that Warren Munddine, the head of the Prime Minister's indigenous advisory council, has urged the Prime Minister to drop the controversial plans to amend Section 18C of the Act but also said he would not walk away from the advisory council in protest over the legislation because he had a bigger job to do as part of the advisory council.
Other interesting responses have come from Labor MP Ed Husic, (a Muslim ALP Member), who has said that the changes are more than just symbolic and actually ". . . encourage people to test the outer limits of how they can offend and cause division."
Greens leader Christine Milne is reported to have labelled the proposed changes the "Andrew Bolt clause" creating "a legal loophole to use offensive or inciteful language", while independent senator Nick Xenophon is reported as saying he would be talking to community groups to gauge their reaction, but that Mr Mundine's opposition to the changes was worth noting.
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