When should free speech on race be constrained?

There’s an interesting court case going on at the moment in Melbourne involving a trollumnist and some remarks he made about particular members of a particular ethnic group. The trollumnist in question and his specific views and that specific case are not the focus of this post, but rather the general question of where precisely the line on commentary on race and culture should be drawn.

Obviously, suggesting or implying that someone fraudulently claims benefits to which they should not be entitled is already covered by defamation. The point of the Racial and Religious Tolerance Act 2001 is to extend protections to offended groups rather than individuals.

It is possible it went too far.

We’ll see how the Court interprets what Parliament legislated, but let’s discuss what we think the rule should be – even if that requires a change to the Act itself.

For my part, I’d agree that there should be some limit. If you had an ideologue calling for Jewish shopkeepers to have their shops smashed, that should be over the line. If you had a crank inciting hatred against Muslims by declaring that they were evil and inventing a whole host of outrageous smears against them – well, maybe that would cross the line, depending on how extreme those claims were and how likely they were to devolve into violence.

But if you have someone arguing, contrary to the evidence, that no remedial assistance is needed for a particular disadvantaged group that happens to have a racial or cultural link – well, maybe that’s just part of political debate.

Where should we draw the line? How about – beyond hurt feelings, at the point at which targets who didn’t read such an article start to feel real consequences from it.

NOTE: I won’t be publishing any comments that directly refer to a case currently being heard.

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23 responses to “When should free speech on race be constrained?

  1. savvastzionis

    This reply of mine is not directly to do with your post, however…

    Whilst I agree with nearly all of what you write about, what I am about to say might not fit into the orthodox progressive ‘leftist’ view.

    I think that Bolt has taken the old leftist “We are all equal” line and spun it against us with this issue.

    I believe that whilst the ‘we are all equal’ theory is true, there are times when we can change the rules.

    For instance, when it comes to Aborignal identity, When people who are only 1/8th Aboriginal, feel an allegiance to that side of their identity, then this is something that the opponents of the Bolt’s of this world, should defend wholeheardetly.

    Here are 5 reasons to defend this seemingly ‘wrong’ viewpoint…

    1) Aboriginality is representative of the ORIGINAL people in Australia.
    2) It is an older identity than (white(Anglo-Celtic)) Australian.
    3) Unlike Anglo-Celtic culture, it only exists here
    4) It is a minority culture in its own homeland
    5) It is an identity that has suffered prejudice from 1788

    I believe that the opponent’s of Bolt keep giving him a free kick on this issue because they refuse to acknowledge that many people are being ‘biased’ against their own majority (racial) identity. They are being ‘racist’ against whites. But I repeat, I think in this case, it is a GOOD thing.

    Let’s compare it to Greek Australians (like myself). If Greek identity was to wither away here (which natually, to some extent it is with zero immigration from Greece these days), this would be unfortunate but at least there is still a Greek nation in Europe where this culture still exists.

    With Aboriginality, we should making every effort to retain aspects of aboriginal culture/idenity because if it dies, that’s it.

  2. {EDIT: I’m not publishing mentions of any current cases – Jeremy.}

    To me the issue comes down to only two things: accuracy and damage.

    If my comments are either objectively true or simply a statement of personal opinion, then there should be no legal impediment to my saying them. For example, if a very light-skinned aboriginal doesn’t look aboriginal then I should be able to say “he/she doesn’t look aboriginal.”

    If my comments are not objectively true then the test moves to one of damage: have my comments caused any actual financial or physical harm to the aggrieved. For example if I argue that someone has ‘selected’ an aboriginal identity in order to obtain financial advantage, then unless that person can show my comments actually caused them some sort of damage then there should be no case to answer.

    In a free and fair society I should be able to say whatever I want as long as my words are accurate and/or do not unfairly cause actual damage to my fellow citizens.

  3. The question of just where the R&RT Act is intended to apply is fraught. In the case brought by Robin Fletcher, the court ruled that statements about a group were not covered by the Act, only specific instances of vilification against individuals. In the case against Catch the Fire, the reverse applied. And so on.

    I’ve been involved on an expert basis with two cases (both now resolved), and in both situations, there was a great deal of confusion about the extent of coverage supplied by the Act.

  4. Splatterbottom

    We have laws to stop peoples’ feelings being hurt. The line to draw is where the impugned speech is also part of the commission of another offence. There are already crimes which deal with harassment, assault and incitement to violence whether or not they have a religious or racial component.

    Racial intolerance is in a different category to religious intolerance. There are many putrid religious beliefs floating around that deserve a good shellacking. There should be no fetter on discussion, criticism and ridicule of religion. We have only relatively recently done away with blasphemy laws, and now is not the time to be bringing them back as the Irish have done recently. The campaign by the UN to protect religions from criticism is an odious attack on the human rights it purports to defend.

    Racist statements, on the other hand, are almost always wrong. Nevertheless, they should not be criminalised. If they are associated with the commission of another offence, such as incitement to violence, than that other offence should be prosecuted.

    Sadly two people have recently been jailed in Australia for anti-Semitic statements. This is obscene and dangerous for democracy.

  5. It’s always difficult to get the line right.

    Inciting violence is obviously crossing the line, but one about inciting ‘hatred’ or ‘vilification’ is more difficult and generally lead to extensive legal argument about definitions and intentions. I’m not sure if that is so helpful. But I could be wrong.

    It’s interesting to look at past cases – one case, which has nothing to do with a current case before the courts, found that imputing financial gain relating to membership of a group, did breach the RDA.

  6. I think most opinion writers know only too well that so long as comment on a matter of public interest is honestly held, fair and not actuated by malice they are unlikely to be open to issues of defamation. Some just like to test those boundaries.

    I’m a bit of a libertarian when it comes to these questions. In a tome called The Writer and the Law it was suggested that whatever is added to the field of libel is taken from the field of free debate.

  7. “But if you have someone arguing, contrary to the evidence, that no remedial assistance is needed for a particular disadvantaged group that happens to have a racial or cultural link – well, maybe that’s just part of political debate.”

    Yes…
    provided that you don’t accuse someone (on the air, say) of pretending to have such a link in order to scam said assistance, without bothering to fact-check your allegation, or despite knowing better… that would be libel (or as certain radio persons call it, “free speech”).

    Getting the line right can be as clear or fraught as we want to make it, but if certain radio and/or print persons however, were able to demonstrate an honest attempt at said fact-checking (even if they f— it up, since we’ll never ban incompetence), they’d surely have little to worry about.

  8. if certain radio and/or print persons however, were able to demonstrate an honest attempt at said fact-checking

    Fact checking is only required if a factual claim has been made. For example if an opinion is expressed that someone has probably chosen a particular racial identity because (amongst other things) it gives them special advantages then that surely should not be considered libel since it is not a claim of fact?

  9. I reckon it’s all about context.

    A single comment cannot be seen as villification in itself.
    If that comment is one of many in an ongoing litany of attacks on a specific religious/cultural/ethnic group, then it’s fair to say that there is an observable effort at persecution .
    The courts are more than capable of determining if an offensive comment or assertion is a singular event or part of a pattern of abuse and they should take that into consideration when ruling on such issues.

    Apart from context, the community standing of the “offender” should be considered as well.
    Are they a politician or an office worker? A religious leader or a regular sinner? Are their opinions broadcast to millions of people everyday or do they yell from a soapbox in a country town?

    Somebody who is considered an opinion leader with access to an international news(ish) organisation should be held to a different standard than SB the crazy old man down the road.

    Cheers

  10. Splatterbottom

    What about free speech, Marek? Yours is a fairly short road to mandating political correctness.

    Fuck tha thought police!

  11. savvastzionis

    http://www.theage.com.au/victoria/antigay-claim-enrages-bolt-20110330-1cgf0.html

    “The people named in his articles identified with the Aboriginal part of their heritage when their ”white” faces made it clear they had other identities to choose from, and were ”pixels in a picture of madness”, he said.”

    Further to my earlier post, Bolt pounces on what I consider a positive. That is, the emphasis on a supposedly lesser aspect of their background.

  12. mondo rock…
    Not if they made it clear AT THE TIME that they were presenting a mere opinion. But to ACCUSE someone of something (which is what I’m referring to) is by definition an assertion being presented as fact. Hence the onus of proof that courts place on accusers.
    Besides, you can’t just tell the judge “That’s what I believed at the time”. You’ll still be asked wether you bothered to check.

    And this is on top of Mareks unanswerable point – these characters are, by definition, opinion-makers (the influence of which is considerable, and well-documented). Using soapboxes that we (taxpayers) give them (through licensing, spectrum, etc.). Power without responsibilty is the whores prerogative.

    Or they can go to some low-circulation newsletter, where they can really cut loose.

  13. The cure to bad speech is more speech. If a radio shock jock spends an hour on his show ranting at the “other”, then fairness dictates that the “other” should have an hour of unfettered airtime the next day to respond.

    Not to be interviewed by the jock – that just leads to “have you stopped beating your wife” sand-bagging that plays into the racist’s hands. No, they get the jock’s actual show timeslot to say whatever they want with the jock locked out of the room.

    That’s the problem with the current media setup – no *effective* right of reply. If you can’t afford your own radio/tv show, or have don’t have powerful friends, then you are voiceless. Voiceless people make excellent scapegoats to distract from “Corporate Executive Rakes in $100 million Bonus for Doing Nothing Useful to Society”, which is closer to the real cause of our society’s ills.

  14. narcoticmusing

    Right of reply should also not be confused with ‘equal time’.

  15. Splatterbottom

    Unique I feel your pain, but it is not so bad. We already have two publicly funded broadcasters to sprout the progressive view of the world. In fact the way they shape the facts to match the narrative we are trying to convey is masterful. The leftist management generally take care that no conservative views get by without immediate rebuttal. Albrechtsen has been removed from the ABC Board, so we have the game sewn up there.

    I can understand your outrage that alternative points of view are permitted on privately-owned media. What we need is some vigilant thought police to guard us from politically incorrect ideas. Maybe the newly announced Getupthemselves! campaign to intimidate those with non-progressive views will comfort you.

    We have worked long and hard to ensure that everyone has a politically correct education from pre-school to university, but it is tragic to see that good work undone by a few opinionated commentators who think they can think for themselves. It was a long struggle to establish the right free speech and now it is being abused to criticise progressive views! What is the world coming to?

  16. “leftist management generally take care that no conservative views get by without immediate rebuttal.”

    That Chris Uhlman, Tony Abbott love fest interview must’ve been a figment of my imagination. Then it stands to reason that a pair of conservative Cathoilcs would scratch each others backs.

    And Andrew Bolt making a bogus claim on Insiders, completely unchallenged. Always allowed to talk over others (granted, that’s Negus’s fault but it blows your myth out of the water)

    Thanks for demonstrating yet again that you view definite right of centre people as ‘leftists’ then again, you’re a lunatic fringe right winger who entertains me with your, ridiculous, hysterical posts. ;) Keep ‘em coming.

    “We have worked long and hard to ensure that everyone has a politically correct education from pre-school to university”

    LOL – You crack me up… No doubt you’d prefer our kids were exposed the Goebbelian style of that idiot, right wing religious conservative who leads the opposition?

    Stop the boats….. Stop the boats!!!!! (kill the poor – tax relief for the rich etc etc)

  17. Splatterbottom

    RobJ: “the Goebbelian style of that idiot”

    You must mean Flannery, Juliar’s special climate Goebbels. Maybe in the interests of fairness the government should pay Ian Plimer $700k to put the opposite view, eh Unique?

  18. ” pay Ian Plimer $700k ”

    LOL, As I suspected you are rather susceptible to Goebellian propaganda. Plimer LOL!

    But then again, you’d believe anything…. Like a Catholic God for starters. ;)

  19. Splatterbottom

    RobJ: “But then again, you’d believe anything…. Like a Catholic God for starters.”

    There you go again. Your religious bigotry has hurt my feelings very much. This is exactly why we need strong laws like the Racial and Religious Tolerance Act, which you have obviously not read. This sort of vilification must be stamped out.

    The really good thing is that atheism isn’t a religion so you can pillory those miserable atheist heathens all day long without being criminalised by this cunty law.

  20. “I can understand your outrage that alternative points of view are permitted on privately-owned media.”

    Actually, my “outrage” (usually called “concern” in the Regular Queen’s English) is that alternative points of view are *not* permitted on privately-owned media. Except as objects of ridicule.

    The ABC is hardly a den of left-wing radicals – they regularly give a forum to alternative points of view. I wish they’d call bullshit on the outrageous from all sides rather than pulling back to “He Said, She Said, We Just Report” (even when He is lying his ass off). Calling them leftists is hilarious. I wish!

    The ABC only looks left-wing to you SB because you’re so far off with the right-wing pixies that you cannot even see the centre any more. It all looks Crazy Left from way out there. Seriously man, get help!

  21. given your examples, I believe free speech should only be reined in when it incites people to violence/commit crimes, otherwise it is an opinion, nothing more

  22. “The really good thing is that atheism isn’t a religion so you can pillory those miserable atheist heathens all day long without being criminalised by this cunty law.”

    Hmmmmm. I’m pillorying you SB. I’ve got no problem with the religious, I just like to dish it out to those who decide that anyone left of themselves or Abbott must be a ‘leftist’ and that ‘leftist’ is a unitary entity that is stupid and responsible for all that is wrong with the world.

    You said in the past that you don’t like it when your (sexist/homophobic (aahhhh BIGOTED!)) religion is attacked, fair enough, your religion is your belief, thing is you have no issues attacking others beliefs (anyone you perceive as leftist). Since you can dish it out I suggest that you just suck it up.

    BTW, I’m not an atheist. ;)

    “miserable atheist heathens

    LOL – Like I say, I’m not an atheist but face it SB they aren’t the ones who revel in ignorance and make up shit like hell to scare the bejesus out of the flock! I reckon the miserable are those who have to reach for a crutch because they just can’t accept the fact that they are animals. They live, they die. They want to think they’re special, and that their god will make them not die…. Sad.

  23. “We have worked long and hard to ensure that everyone has a politically correct education from pre-school to university, but it is tragic to see that good work undone by a few opinionated commentators who think they can think for themselves. It was a long struggle to establish the right free speech and now it is being abused to criticise progressive views! What is the world coming to?”

    You’re piss-funny SB – except when you’re trying to be

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