Anti-anti-vilification

watts.jpgI’ve fulminated against the iniquities of racial vilification laws on more than one occasion (here, here and here). ABC Radio National Law Report also covered the issue back in 2002.

What I hadn’t known until now is that a couple of State governments have gone even further in the direction of restricting free speech under the guise of “tolerance”. As its title suggests, Victoria’s Racial and Religious Tolerance Act outlaws “vilification” based on a person’s religious beliefs or practices as well as their race, while section 19 of Tasmania’s Anti-Discrimination Act throws caution (not to mention freedom of speech) to the winds and outlaws vilification based on race, disability, sexual orientation or religious beliefs, affiliations or activities.

The absurd outcome of this sort of dangerous politically-correct nonsense is illustrated by the following two current media stories (the photo of “Ms” Watts is from News Interactive story):

Witch to sue local mayor

Olivia Watts, a male police officer and practising witch, will test Victoria’s unique religious tolerance legislation.
Free legal work, tribunal fees and a solicitor and barrister were believed to have been given to Ms Watts by Victoria Legal Aid.

Several top barristers were angered by the use of scarce Legal Aid funds, but Attorney-General Rob Hulls gave his OK to a similar case.

“We govern for all Victorians – and that includes witches, magicians and sorcerers,” Mr Hulls wrote to the Pagan Awareness Network, which is also suing the mayor of Casey, Rob Wilson.

Ms Watts said she became “an emotional wreck” after Mr Wilson outed her as a witch in a press release and on community radio. She was taking Mr Wilson to the anti-discrimination list of the Victorian Civil and Administrative Tribunal in August.

In her witness statement, Ms Watts stated she had practised her craft since she was six years old.

“I have followed my faith since childhood, and this is the first time that I have been attacked because of my faith,” she wrote.

She said her sleep and home life were “disturbed badly” as a result of the comments, and that she had to close her naturopathy clinic because she was too distraught to see clients.

In June last year, Cr Wilson blamed a series of council embarrassments on diabolical intervention.

He said there was a “satanic cult out to take over Casey”, and that the council’s toils and troubles had “all the hallmarks of being linked to the occult”.

Is it Vilification?

The Tasmanian Gay And Lesbian Rights Lobby are seeking legal advice on whether George Pell’s column condemning gay parents violates the state’s vilification laws.

“We think there is a prima facie case that the article incites hatred on the grounds of sexual orientation which is against the law in Tasmania,” TGLRL spokesperson Rodney Croome told Sydney Star Observer.

“There’s no exemption in Tasmania’s anti-discrimination law when it comes to churches “¦ Cardinal Pell cannot hide behind his red robes,” Croome said. The maximum fine for breach of the law is $20,000.

Pell wrote this week in The Australian that research showed traditional marriage provided “a significantly lower danger of child abuse and murder” and “significantly lower risks of infant mortality, substance abuse, depression and suicide”.

Pell’s opinion is self-evidently stupid in several respects, but Croome’s position is dangerously fascistic. Silly and intolerant attitudes don’t need to be suppressed; they need to be exposed and discredited by rational argument. June Factor from the Victorian Civil Liberties Council encapsulated my position on The Law Report:

June Factor: If you want a free society, you have to be able to tolerate the differences of view. Now undoubtedly sometimes what people say, whether it be true or false, will hurt the feelings, will offend others. I don’t think that’s an adequate reason for preventing people from saying it, and I think there was an American judge of the American Supreme Court who once said that the best antiseptic is sunlight, and I think that’s absolutely right in the area of argument as well. I want to be able to challenge these views, I don’t want them suppressed, sent underground, become surreptitious, allow the purveyors of these views to, as we were saying before, become martyrs, and attract a whole lot of people to their cause because of their sense of being intimidated and oppressed. That’s not I think the way a free society works, either if you like in terms of its philosophy, nor indeed in terms of good practice.

Damien Carrick: What do you see as the risks of removing this kind of material from the public debate?

June Factor: The truth is, it won’t be removed from the public debate. It will still be there, it will now unfortunately have this halo around it, or rather the person who who had heard of Frederick Toben until this broke out? I mean he was an unknown person. Now anybody, all sorts of people will start to look him up on the web and find out about him and correspond with him. So I don’t think it will be removed, and the point I was making earlier, it’s not even practical.

Damien Carrick: As a Jewish person who comes from a family which was destroyed during the holocaust, you must understand though the hurt and pain that this kind of information can do to people who come across it.

June Factor: Of course. There’s no question of that. But it seems to me that one of the lessons from history is that it is tremendously important for people to try to ensure that the society in which they live is open to dissent, including views which they find deeply offensive or plain stupid and ridiculous. I also abhor passivity, I think it’s terribly dangerous for people to turn their heads away and say ‘It’s nothing to do with me’. I think it has to do with us all, and people like Toben need to be challenged and his nonsensical, ahistorical views have to be responded to and answered, but it’s pointless trying to shut him up.

Update – Just for the sake of completeness, I did a quick bibliographic search for journal articles about Australian anti-vilification laws. I came up with a frankly bizarre article titled “Jurisprudential Foundations for Anti-Vilification Laws: The Relevance of Speech Act and Foucauldian Theory” by Aleardo Zanghellini in last year’s Melbourne University Law Review. Apart from being packed with predictable po-mo wankery, it probably shouldn’t have surprised me that the author also managed to deploy post-modernist “analysis” so as to conclude that, while it might be perfectly acceptable for the law to prohibit vilification of gays, Aborigines, muslims and other minorities, it would be a serious infringement of freedom of speech rights for such laws to be available where the target of vilification is a white middle class male like me!!:

Homophobia and racism against minorities remain serious social ills. If anti-vilification legislation is appropriately tailored to the goal of tackling these ills, contending that such legislation is constitutional is not outright unreasonable. Bigoted or hostile speech against such groups as heterosexuals or Anglo-Australians may cause offence. But this offence is a much lesser evil than the subordination, violence and silencing that individuals belonging to stigmatised minorities may experience. The case for regarding such offence as a sufficient reason for limiting freedom of expression has yet to be made.

Shakespeare was wrong when he said: “The first thing we do, let’s kill all the lawyers“. He should have put legal academics first, and other lawyers second.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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10 Responses to Anti-anti-vilification

  1. Steve Edwards says:

    The idea of outlawing religious vilification is monstrous. How on earth can you stop people attacking each other’s views? Perhaps we should outlaw political vilification too, and make every parliamentarian pay fines for “hate speech” against their opponents.

  2. Norman says:

    An aspect of these insane laws that’s never mentioned, is how someone whose literacy skills exceed the norm, is often able to be far more hurtful if he wishes, than anything that’s usually said by those upon whom the law descends.

  3. snuh says:

    um…aren’t you a legal academic?

  4. David Tiley says:

    “In the past six months, Ms Watts says, her business on the city’s outer suburban fringe has collapsed; she has been physically attacked; and her home and car vandalised..

    …The opening salvo came in early June from the City of Casey’s Rob Wilson who issued a press release claiming that a satanic cult was about to take over the city. He named Ms Watts ..

    …Cr Wilson called on Casey’s church leaders to consider calling a day of prayer to hold back the occult forces he believed were on the march…

    ..Since the claims became public, Ms Watts says she has been subject to attack. “On August 16 a gentleman came to my door and asked me if I was the naturopath Cr Wilson was talking about. When I admitted I was, he grabbed me and started hitting me on the forehead saying he was driving the demons out of Casey. He just kept screaming ‘Out you demon, out you demon’.” ”

    All from the Age.

    Now I often have the urge to catch a bus to Canberra and grab certain Federal government politicians and smite them on the forehead shouting “Out you demon, out you demon”.. partly for proposing this kind of legislation anyway.

    But at the same time, Watt is claiming that things have been said which have incited attacks by maddies, and wants to clobber the inciters back. I presume this law will do it.

    The concept of some councillor attacking residents for their religious beliefs under the banner of a Christian crusade is pretty scarey.

  5. observa says:

    Dear oh dear! Another failed small business entrepreneur that can’t sleep and has become an emotional wreck and had to close her business because of some perceived injustice. Why is it these losers all sound the same, to those of us who soldier on in the marketplace, regardless? ‘The gummint orta do sumpink!’

  6. snuh says:

    at the risk of invoking godwin’s law, do you suppose there ought to be some kind of statute barring this:

    “all jews are cockroaches and their insane greed and bloodlust is the proximate cause of every problem in the world”

    if you think, well, fair enough, it’s a good thing that this is illegal, perhaps you will suggest a basis from which to distinguish it from the case of this witch. you will note that saying “free speech” will not be sufficient for this purpose, since equating jews with vermin falls within the purview of such a concept. the issue has always been about how far free speech should go, and blithely yelling “politically correct nonsense” gets us nowhere.

    and i should also point out that witches, like jews, have long been subject to persecution based on their [i would say rather odd] beliefs.

  7. Ken Parish says:

    Snuh,

    “um…aren’t you a legal academic?”

    Yes, that’s how I KNOW we richly deserve elimination come the revolution. Fortunately I don’t expect the revolution any time soon.

    As for your question about how we distinguish between the monstrous anti-Jewish rhetoric you quoted and the Victorian local councillor fulminating about withces, my answer is that you don’t. American constitutional law has a quite useful test of “fighting words”: if vilification is of such a nature (and uttered at a time and place) as to be highly likely to provoke immediate physical violence, then it can be legitimately prohibited in the interest of civil order. Otherwise prohibition is an unconstitutional infringement of free speech rights. Unless it was uttered at a gathering of Jewish people, I don’t think your example would meet the “fighting words” test.

  8. woodsy says:

    It was just that idea of ‘sticks and stones may break my bones’ that I was alluding to in my post about Professor Bunyip. It became obvious from the comments (mostly about the character in question) that most missed the point. It’s not the words themselves that cause the problem but, amongst other things, their context.

    As Norman writes, ‘how someone whose literacy skills exceed the norm, is often able to be far more hurtful if he wishes’ it’s true that a wordsmith can be extraordinarily cutting, but they are, nonetheless, just words. BTW, few would have heard of Tim whatshisname or his stupid cartoon if people hadn’t made such a fuss about it. Similarly, if the only thing that people do in harrasing witches, jews, muslims etc. etc. is talk about how awful they are, what’s the problem ? Making a big deal about it just serves to make the minorities famous; sometime I suspect that is the object of the exercise by the so-called victim. My. hasn’t Ms Watts business blossomed lately ! How did she do that I wonder.

    I like the quote from June Factor: If you want a free society, you have to be able to tolerate the differences of view. Now undoubtedly sometimes what people say, whether it be true or false, will hurt the feelings, will offend others. I don’t think that’s an adequate reason for preventing people from saying it, and I think there was an American judge of the American Supreme Court who once said that the best antiseptic is sunlight, and I think that’s absolutely right in the area of argument as well. I want to be able to challenge these views, I don’t want them suppressed, sent underground, become surreptitious, allow the purveyors of these views to, as we were saying before, become martyrs, and attract a whole lot of people to their cause because of their sense of being intimidated and oppressed.

  9. snuh says:

    well ken, in view of the material submitted by mr tiley, were the words against the witch not “fighting words”?

  10. Ken Parish says:

    Snuh,

    Legislation prohibiting conduct amounting to “fighting words” will only be constitutional in the US where it is directed solely at the tendency of the words to provoke breaches of public order, and not to their content or ideas per se. Anti-vilification laws by their very nature ARE laws directed at the content of speech rather than at its tendency to provoke civil disorder. See R.A.V. v City of St Paul, which dealt specifically with a US state anti-vilification statute and held that it was unconstitutional.

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