Should People be Allowed to be Bigots?

In 1975 the Australian Parliament passed the Racial Discrimination Act.  Australia passed this statute as a result of becoming a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The overall objective of the Act is to prohibit the discrimination of people based on their race, colour, descent, or national or ethnic origin.

There are two sections of the Act, 18C and 18D, that aim to protect people from racial vilification.  Sections 18C and 18D were included due to Australia being a member of the ICERD and also the International Covenant on Civil and Political Rights (ICCPR). Australia also had carried out national inquiries into racial hatred, such as the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. The inquiries determined that racial vilification causes emotional and psychological harm to the victims and helps to strengthen their feelings of exclusion in society. "Harmless" behaviour can make it more acceptable for acts of harassment and violence to occur because it is seemingly condoned by society. 

The following is the actual text of section 18C and 18D:

Offensive behaviour because of race, colour or national or ethnic origin
(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.

(2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)  causes words, sounds, images or writing to be communicated to the public; or

(b)  is done in a public place; or

(c)  is done in the sight or hearing of people who are in a public place.

(3)  In this section: "public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Exemptions

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.

Earlier this year, Australian Prime Minister Tony Abbott, of the Liberal Party, pushed forward with his aim to eliminate Section 18C of the Racial Discrimination Act. He announced this goal two years ago as Opposition Leader.

In March of this year, Australian Attorney-General George Brandis made a controversial statement in support of Abbott's policy.  Brandis stated: “People do have a right to be bigots you know. In a free country people do have rights to say things that other people find offensive or insulting or bigotted". His statement has since had a large backlash from the public, media, community groups, and political parties such as the Labor Party. 

In defence of Brandis's statement, Abbott stated: "Of course this government is determined to try to ensure that Australia remains a free and fair and tolerant society, where bigotry and racism has no place, but we also want this country to be a nation where freedom of speech is enjoyed. And sometimes, Madam Speaker, free speech will be speech which upsets people, which offends people".

Prime Minister Tony Abbott (left) and Attorney-General George Brandis (right)
Source: The Australian 

Taking into consideration the types of policies that the Abbott government believes in, it is understandable why it is pushing to get rid of Section 18C. The Liberal Party can be described by "economic liberalism," promoting deregulation, highly supportive of business interests, and focused on decreasing government spending. These beliefs are evident in the Abbott government's recent controversial policy changes, such as removing caps on university tuition fees and eliminating the carbon tax. Therefore, it is not surprising that while Abbott promotes deregulation in other areas, he is promoting the deregulation of speech.

Abbott, Brandis, and other Coalition members who support him, keep reiterating that Australia has "freedom of speech." As an American hearing this story, I could not help but think about how this event shows how different the U.S. and Australia are in terms of the freedom of speech. Although both countries have "freedom of speech", the meaning of it in each country is different.

I think that if Brandis had made his statement in the U.S., there would have not been such a backlash than seen in Australia.  His statement is just simply true in America. Thanks to the First Amendment freedom of speech in the U.S., one can be as racist as one would like using speech. Like Australia, racism is generally highly opposed by the public and racists are ostracized.  Nonetheless, racists are legally allowed to speak their minds. But, racism still exists in both nations, as I will discuss later in this post.  

The U.S. was founded to escape a despotic government. Given that background, it was essential for America's Founders to establish the freedom of speech, as a way to protect people from a despotic government. Since the First Amendent is the first right in the Bill of Rights, I would say it is America's most cherished right and one that the courts tend to lean in favor of.

Source: http://advocatusatheist.blogspot.com/

The arguments put forth by proponents of 18C's repeal are very similar to those that support free speech in America. Tim Wilson, current Human Rights Commissioner and a previous Liberal Party member, believes that when speech is prohibited any discussion of the issue at hand is silenced and the opportunity to challenge it is eliminated.  Prohibiting the speech causes resentment and could lead to bigger problems later on. If bigots are able to speak their mind, greater society will backlash, showing the bigots that their speech is unacceptable.

This line of reasoning is similar to that in a number of freedom of speech Supreme Court cases in the U.S. Two landmark cases have strongly shaped how the freedom of speech is interpreted today. First, in the 1977 case, National Socialist Party v. Skokie, the Supreme Court upheld the right for the Nazi Party to conduct a parade in the town of Skokie, Illinois.  At the time, Skokie's population was near 60% Jewish.  The demonstrators aimed to wear traditional Nazi uniforms but stated they would not make derogatory comments. However, a court injunction was put on the Nazi Party from demonstrating. The Supreme Court then decided that this was unconstitutional and the Nazi Party could not be prohibited from their demonstration due to their Party's message.

The Nazi Party demonstrating in a Chicago park in 1978.
Source: www.trionfopublishing.com

Second, the 1982 Supreme Court case, Brandenburg v. Ohio, also has helped to define the meaning of free speech in America. Ku Klux Klan member Clarence Brandenburg gave a speech in Ohio where he called for "revengeance" against Jews and African-Americans. He was then convicted and sentenced under two Ohio laws that prohibited the advocacy of crime or violence as a way of achieving political reform. The Supreme Court found the Ohio laws unconstitutional.  Through this case the Supreme Court established a legal standard that determines when the government can prohibit speech that has come to be known as the "Brandenburg Test." Speech that promotes using force or crime can be limited if first, it directs the incitement or production of imminent lawless action and two, it is "likely to incite or produce such action". It is clear that in America, speech cannot be prohibited because it may severely offend a person, but rather it can only be prohibited if it may bring about lawlessness that presents a strong danger to people's physical safety.

A thought provoking cartoon about whether "free speech" and "hate speech" are one in the same.

An explicit right to freedom of speech, like the First Amendment, simply does not exist in the Australian Constitution or in Australian law. In the 1992 decisions, Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (ACTV) 177 CLR 1, the Australian High Court ruled that freedom of expression in regards to public and political discussion was implied in the Constitution. The Court believed it was implied because the right of free expression is one that is essential to a democratic and representative government, which is the type of government that the Australian Constitution had created. 

Following cases broadened the meaning of the right to free expression in Australia, but the right does not apply to areas where political issues are not involved. The following cases extended the freedom to the publication of material that discusses government and political issues generally, relates to the the performance of Parliament members, as well as the performance, conduct, and suitability for office of members of the Commonwealth and state legislatures. This is clearly a very different scope than the one that encompasses freedom of speech in America, where the freedom of speech is not only limited to political speech.

While the freedom of speech is found explicitly in Australian law itself, Australia is a member of the ICCPR, which I discussed earlier in this post. The ICCPR explicitly includes a freedom of expression. However under the ICCPR, the freedom of expression must be limited to prevent racial vilification. However, the Australian courts have aimed to balance a freedom of speech with the freedom from racial vilification. For behavior to come under 18C, it must have effects that are "profound and serious" and not "mere slights." As I discussed earlier, Section 18D provides exceptions that protect free speech. But advocates for maintaining 18C and 18D say that, the proponents of the repeal speak as though the Act contains no free speech protections.  For example, Tim Soutphommmasane, Race Discrimination Commissioner, comments that "'The proponents of the repeal of 18C were never able to answer one question: what is that you want to say that isn't already protected under section 18D?'"  But it seems as though that the proponents of the repeal do not wish to remove 18C because they have something racist to say, but rather they just want to have more "freedom".

 

This past August the Abbott government suddenly dropped their push for the repeal of 18C. Abbott came forth and made clear that it is a part of a national anti-terrorism strategy. Given the growing strength of the Islamic State in the Middle East, and the involvement of Muslims from western countries such as Australia, the U.K. and the U.S. there, Australia does not make Muslims feel excluded at this time by pushing for the repeal of 18C. Abbott stated:
"I do not want to do anything that puts our national unity at risk at this time so those proposals are now off the table." Abbott has also stated that he is committed to engaging closer with minority communities in Australia, so that everyone is a part of "Team Australia."

However, not all Australians think Abbott should have dropped his goal of repealing section 18C at this time despite the unrest in the Middle East. As you can see below, the Institute of Public Affairs, "an independent, non-profit public policy think tank, dedicated to preserving and strengthening the foundations of economic and political freedom," thinks 18C must still be repealed.  I think the ad below shows that proponents of the repeal are pushing on this issue not because they want to be bigots, but rather they believe a freedom of speech should not have any limitations.

This ad by the Institute of Public Affairs was published in The Australian on August 8th.
Source: Institute of Public Affairs

I believe that if the events in the Middle East had not been escalating as they are, the Abbott government would be continuing with their push. But presently, it is in the Government's political and security interest to maintain the Act as it stands. Abbott has two more years as Prime Minister, so it is very possible that the push for 18C's repeal may return.  But I think the state of international and Middle Eastern affairs will have a great effect on its return in the near future.  

I recommend readers to watch this video. It gives a very good overview of the whole timeline of the 18C issue in Australia.

 

The U.S. and Australia have taken to different interpretations of free speech and ways of dealing with racist speech. However, both nations still struggle with racism as highly multicultural nations. Each country has groups of people who have been horribly mistreated in the past and still suffer from systemic discrimination today.  Recent events show very well how racism still exists: 

In 2013, Australian Rules Football (AFL) player Adam Goodes, an Aboriginal, was the victim of a racial taunt. He was called an "ape" by a young fan of the opposing team during a game. This past July, a white woman on a Sydney train launched a public racial tirade against Asians that was recorded on a cell phone video. She mocked a passenger for having a "gook" for a girlfriend, as well as mocking her accent and conducted a racist gesture of pulling at her eyelids.  The Australian Government has also been the subject of attacks from UN Human Rights officials for the very poor treatment of asylum seekers in detention centers.

Adam Goode, an Aboriginal AFL player for the Sydney Swans.
Source: The Telegraph 

In 2010, the American state of Arizona passed a law (SB 1070) that allowed law enforcement officials to effectively racially profile, by allowing them to ask for people's papers showing their citizenship status "during a lawful stop, detention, or arrest."  In 2012, an unarmed 17 year old African-American, Trayvon Martin, was shot and killed by a white neighborhood watchman in Florida.  Most recently in early August, there have been riots in Ferguson, Missouri as a result of an unarmed African-American young man, Michael Brown, being shot and killed by a white police officer. 

A demonstrator at a protest of the 2011 Arizona SB 1070 law.
Source: anthonyuu.wordpress.com

Students at Howard University in Washington, D.C. took this photo in response to the Michael Bown shooting.
Source: hlntv.com

So given all of these similar recent events in each country, it is very interesting how each country addresses racist speech so differently through law.  Is one way better than the other? Does 18C actually helps people who have been racially vilified? Is 18C having an effect on decreasing racism in Australia?

A 2006 paper from the University of Melbourne Law School asked whether the Act has contributed to eliminating racial discrimination and analysed data between 2000 and 2004.  The author, Beth Gaze, explains that it is difficult to measure the successs of anti-discrimination law because statistics are ambiguous.  For example, an increase in complaints could mean public knowledge about what one can bring a complaint about has improved or discrimination has increased.  She also comments that it is difficult to know what statistics about conciliation mean: "The fact of settling does not indicate how adequate the settlement was: where complainants are in a weak position, they may be grateful for any settlement offered, in order to avoid a hearing in the federal court".

Complaints of racial vilification that fall under the Racial Discrimination Act must be lodged with the Australian Human Rights Commission. During the 2012-2013 financial year, the Commission received a 59% increase in complaints under section 18C. During that year, 53% of racial vilification complaints were resolved through conciliation.  Also in that year, 4% of complaints were declined for being "trivial, misconceived or lacking in substance". Only less than 3% of complaints actually go before a court.
 

Of those complaints that do make it to court, most are dismissed according to this article. The article includes an interesting slideshow profiling the types of complaints that have been upheld and dismissed in court as instances of racial vilification under the Act. Most complaints come from Aboriginals, while the second largest group comes from Jews, and only a small amount come from Caucasian people.

But what do these statistics tell us?  There has been a signficiant increase in complaints recently.  Are people more knowledgable about the law or is Australia more racist?  A large number of cases are being settled through conciliation, but were the settlements favorable or unfavorable to the person who brought the complaint?  Does the dismissal of a lot of cases mean people are making complaints that do not come under the Act or is the court being too selective of the cases that it chooses to hear?

Overall it seems to me that the research on the effectiveness of the Act is limited and it is not clear whether it has been largely helping those who have been racially discriminated against.  Ultimately Gaze concludes that the Act has had limited success and has been a weak way to reduce racial discrimination, which she believes shows "the difficulty of using law as an instument of social change."

So should there be laws to prevent people from using racist speech?  Or does giving people the freedom to speak in a racist manner better help address racist speech in a society? Which way has a better hope of helping to decrease racism? Should people be allowed to be bigots?  Readers, what do you think?

Written by: The American.