Do jerks deserve free speech?

Date

Chancellor's Postdoctoral Research Fellow, University of Technology Sydney

View more articles from Alecia Simmonds

On 28 September 2011, Andrew Bolt was found to have contravened section 18C of the Racial Discrimination Act.

On 28 September 2011, Andrew Bolt was found to have contravened section 18C of the Racial Discrimination Act. Photo: Justin McManus

Imagine if Alan Jones and  Andrew Bolt could be thrown in prison and charged money for vomiting venomous racist bile in public. Seriously. I don’t mean this in an ‘imagine if you were invisible and could fly’ kind of way. Nor in the sense of: ‘imagine if Ryan Gosling begged for you to be with him but you turned him down in favour of being a lesbian mother with Portia di Rossi.’ I mean this in the sense that [insert sonorous BBC news voice here] the NSW Parliament is conducting an inquiry into racial anti-vilification laws which impose criminal penalties for hate speech. Specifically, section 20D of the NSW Anti-Discrimination Act is for ‘serious racial vilification’ and carries a penalty of $5,500 dollars and 6 months in jail if you’re found to have incited ‘hatred’, ‘serious contempt’ or ‘severe ridicule’  of a person or a group or to have threatened physical harm. Since the law’s inception in 1989 there have been 27 complaints referred to the Director of Public Prosecutions but not one has been prosecuted. The legal requirements are too stringent. The Inquiry may look at revising the requirements to make it easier to sue. [Now stop reading in BBC voice or it will become distracting.]

Already the announcement has sparked the usual Cassandra like murmurings of free speech advocates wringing their hands and making terrible prophecies: Pestilence! Death of democracy! Gagging of political dissidents! Voltaire is quoted with promiscuous glee: I may not like what he has to say, but I’ll defend to the death Alan Jones’ right to call Lebanese people ‘vermin and mongrels’. Democracy needs free speech. And in the free marketplace of ideas, the truth will always triumph.

A similar debate raged last week in England over writer Julie Burchill’s breathtakingly transphobic article in defence of her gob-smackingly transphobic mate Suzanne Moore. Moore made a jibe at ‘Brazilian transvestites’ in an otherwise excellent essay on female anger. In so doing, Moore incurred the wrath of some ‘bullies’ standing up for transgender rights. I don’t want to repeat what Burchill said in defence of Moore, but suffice to say it was so horrendous that the Guardian removed it and released an apology. It was in flagrant breach of their anti-vilification policy. In their ping-pong game of hate, Moore hit back in defence of Burchill saying that she had been censored by ‘humourless, authoritarian morons.’ ‘How has the left ceded the word ‘freedom’ to the right?’ she brayed.

So how do we make sense of this seeming opposition between equality and free speech, especially given that we pinko lefty types tend to cherish both and have historically stood up for both. Perhaps it’s best to start with the fact that freedom of speech is not an unqualified right or an unqualified good. Your ‘freedom to’ say what you want can’t come at the expense of other people’s ‘freedom from’ fear, violence or hatred which may be incited by what you say. The left hasn’t given up on freedom. We just want to stretch it to include the most vulnerable members of our community.

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Studies have consistently shown that hate speech is not just words, but that it usually precedes an attack. Sociologists Rowan Savage and Gordon Allport describe it as part of a continuum of violence where racial vilification can slide easily into violence or genocide.  Hate speech makes violence possible and is also itself a form of violence. Law Professor Mari Matsuda has found that victims of vicious hate propaganda experience physical symptoms such as difficulties breathing, increased pulse-rate, nightmares and post-traumatic stress disorder. So, I would think, like any form of violence, hate speech should be subject to criminal sanctions, not just toothless symbolic legislation.

And what about the free marketplace of ideas? The idea that the truth will win out through rational debate while bad ideas will wither and die? The problem with these arguments is that they imagine that the marketplace affords everyone an equal right to speak and that every voice is equally loud. This is nothing more than a beautiful fiction. Unfortunately, very little can rival the booming flatulence of Alan Jones. Migrants or Aborigines don’t have the same access to public space.

And you have to wonder why free speech advocates are mostly concerned about the stifling of right-wing views. If people like Tony Abbott were genuinely concerned about free speech then surely they would campaign as fiercely for the protestors involved in the Palm Island riots as for powerful bigots.

We’ve had anti-vilification laws for over twenty years now and don’t appear to have spiralled into a totalitarian state governed by authoritarian morons. I think we need to stop debating whether the laws will gag democracy and start questioning why, in NSW for instance, they apply to homosexuals, ethnic minorities, transgender people and people with HIV but they don’t apply to women. Of the State and Federal Anti-discrimination Acts, only Tasmania condemns inciting hatred towards women through language such as whore or dyke. Is it because too much of what passes as ‘pub talk’ could constitute hate speech? Is it because it would release a flood of litigation around everything from pro-rape facebook pages to misogynistic shock jocks to sleazy uncles? Is it, ultimately, because we live in a society where violence against women is simply not taken seriously? I think it’s high time that Jones and Bolt were sent to the clanger, but for their misogyny as much as their racism.

85 comments

  • "Sticks and bones will break my bones, but words will never hurt me!" -if only it were true! The simple fact is allowing people free will to say what they want does lead to the same people doing what they want - and then what started as words ends up as sticks and stones! There are limits to what should be said and your right to say it. Voltaire was wrong.

    Commenter
    Drongomcmc
    Location
    Penang, Malaysia
    Date and time
    January 23, 2013, 2:58AM
    • It's a tricky issue. The thing is if those obnoxious beliefs aren't challenged, they fester and come out in various ways anyway.

      Perhaps just as important is how to get the media space to put across the challenging views with the evidence necessary. That's the only real way to neutralise bigots.

      Commenter
      Think
      Date and time
      January 23, 2013, 11:29AM
    • @ Think - legendary idea! Love the thought of a Karnka Tjuta being given her very own drive-time radio show (complete with BMW and attendant perks) as a counterbalance to Alan Jones :) It would have to be more entertaining....

      Commenter
      andilee
      Location
      Melbourne
      Date and time
      January 23, 2013, 2:45PM
  • The gist of this thread ignores the hate and anti-Western sentiment that comes from Sydney's mosques regularly. Let us recall a few months ago the placards calling for beheadings. This Muslim riot was supposedly related to some YouTube video by some crackpot. Now this is the freedom of speech that is 10 times worse than Andrew Bolt's efforts.

    Commenter
    jg
    Location
    Canberra
    Date and time
    January 23, 2013, 8:44AM
    • This article is correct where it states that violence follows hate-speech. 6 police officers were seriously injured during the muslim free speech riot. Alan Jones once labelled muslims as scum and vermin - unquestionably unacceptable. It is even more unacceptable to start a general riot because someone in another country posted a video on the internet. In addition, it is horrific to Australian eyes to see a placard calling for beheadings.

      I cannot believe I read no criticism of this by Ms Simmonds. Are you willfully blind to these recent events Ms Simmonds?

      Commenter
      jg
      Location
      Canberra
      Date and time
      January 23, 2013, 10:55AM
    • You're angry because she didn't cover ever single example relating to the topic? I don't intend to speak for the author, but I doubt she thinks it's ok to say Mr Jones was wrong but the riots were ok.

      Commenter
      Ben
      Location
      Canberra
      Date and time
      January 23, 2013, 12:34PM
    • I think this is where the community at large should display some solidarity and send out a strong message condemning this.
      If the speech had culminated into riots then the consequences should be obvious and swift - unfortunately there was alot of politically correct pandering and back and forth and nothing much was done.
      That's the thing - Australia and Australians aren't confident where they stand about free speech and political correctness. I'm not saying its one or the other, but they are not mutually exclusive either.
      There's nothing 'offensive' about coming down hard on rioters - its nothing to do with their personal religious beliefs. Sure, believe in wanting to behead others - but as long as you don't do it, incite others to do it no one cares or oppress others into that belief.
      What alot of it has become is alot of fear that one has become 'islamophobic' and of course the association of anything undesireable to Islam as a kneejerk response.
      The suspicion that many Aussies have of foreigners yet resentment at them forming racial ghettos/communities should also be something that needs to be resolved.
      Australia and Australians should have unity and solidarity regardless of personal religious belief, and commitment to welcome and have induction into the Australian community should be an open, highly prioritised affair. This is different from 'pandering', its a show of strength and who isn't attracted to a powerful, confident community of friendly individuals?

      Commenter
      Green Tea
      Location
      Melbourne
      Date and time
      January 23, 2013, 2:44PM
  • If gender based hate speech is banned, where would that leave Daily Life?

    Commenter
    Nogbad
    Location
    Valerie Solanas Institute
    Date and time
    January 23, 2013, 8:46AM
    • The same place it is now, operating as a legal publication and not infringing on any hate-speech laws.

      Now, if you'd care to furnish us with links to the specific articles that you think break the anti-discrimination or anti-vilification laws? And no, quoting that this is a "proudly female-biased" publication doesn't meet the threshold.

      Commenter
      Red Pony
      Date and time
      January 23, 2013, 9:59AM
    • +1

      I believe that's what they call "touche".

      Commenter
      Adrian
      Location
      Sydney
      Date and time
      January 23, 2013, 10:00AM

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