The Australian government is currently trying to amend Section 18C of the Australian Racial Discrimination Act 1975 (RDA). This is the section which asserts that speech content, judged objectively after the event, must not 'offend, insult, humiliate or intimidate another person or a group of people'. Sadly, what is noticeable about the debate so far is the tendency of those in favour of S18C to ignore or treat with contempt the idea of free speech. Below are 10 ways in which those advocating S18C and hate-speech laws in general are dodging, stifling and running away from the debate.
1) Reliance on abstractions
All censors abhor definite standards. Vagueness is always to be preferred. In times past, it was the elastic tendency-based criminal law of sedition, blasphemy, defamation and obscenity. Nowadays, the obscurantism is expressed in two words, 'hate speech', to which an 'identity-specific' adjective such as 'racist' is applied. Yet apart from Holocaust denial and exhibitionist displays of racial prejudice, particularly at sporting events, on public transport and, more widely, by electronic means – both of which are instantly recognisable – no exact definition of racist hate speech is proffered. As with hardcore pornography, we are all expected to recognise it when we see or read it.
As Eatock v Bolt (2011) and Clark v Nationwide News Ltd (2012) demonstrate, the vagueness of S18C operates to restrict public discussion in controversies about 'race, colour or national or ethnic origin of [persons or groups]'. The supporters of S18C happily proclaim the discretionary flexibility of the formulation 'offensive, insulting, humiliating or intimidating' speech as S18C's great virtue. The context in which the section is defended is characterised by the use of fashionable but unenlightening abstractions, most notably: 'diversity', 'harmony', 'inclusion', 'respect', 'dignity', 'marginalisation' and 'cultural sensitivity'. The censor's obscurantism is buttressed by demands that 'systemic', 'unconscious' or 'normative' racism must be stamped out. When Paul Keating's Labor government introduced the bill for S18C in 1995, the rationale was that racist speech was a form of violence which could be more harmful than physical violence.
The propositions that you can be a racist without knowing it, and that words can, as it were, break your bones (and spirit), are surely in need of debate. But instead of being up for debate, these ideas are treated as doctrinal. Moreover, the all-pervasive vagueness attaching to the words 'racism' and 'racist', and the relative ease with which accusations of racism are made, have debased both words. The proponents of S18C censorship bear the burden of identifying exactly what it is they say should be censored. Their rationale for doing so, however, remains an enduring mystery.
2) Ignore one awkward concrete problem
There is another category of 'racist hate speech' which extends the reach of S18C. It is interpreted by the Australian Human Rights Commission (AHRC) as applicable, selectively, to ethno-religious speech conduct. It is only recently that the archaic Christianity-specific common-law prohibitions on blasphemy have become obsolete. This reflects the reality of the secular state: there should no legally privileged categories of ideas and especially no entanglement of the state in religion. The suggestion that, in order to avoid hurting another person's religious sensibilities, an individual should be compelled to display 'respect' for a religious belief or practice – or the concept of religion itself – which that individual may regard as rank superstition, or that an attack on a religious idea or practice in itself amounts to racism, is profoundly anti-democratic, no matter how much it is dressed up in secular pieties about 'inclusion'.
However, S18C and some Australian state legislation have, in effect, resurrected a statutory form of blasphemy. In an address to the United Nations in December 2012, then Australian prime minister Julia Gillard asserted that 'denigration of religious beliefs is never acceptable'. That 'never' is by far the most telling recent illustration of the nature and extent of the contest between a defence of the general right to dissent and those who seek state-backed conformity in public discussion.
3) Portray S18C as a protective law
Most S18C advocates emphasise that it is designed to protect minorities, although S18C makes no such distinction. However, even at that disingenuous level, the claim is no more than wishful thinking. Nobody seems to be suggesting that the civil liability imposed by S18C (and its capricious enforcement) has deterred a single person from resorting to Holocaust denial or racist mouthing-off in public. Yet, simultaneously, its supporters trot out the arguments that S18C is little used and that its real utility is symbolic. So much for protecting minorities.
4) Fearmongering about free speech
There has been plenty of hyperbole. If enacted, attorney general George Brandis's proposed reforms to S18C would usher in a 'licensing of hate', 'give succour to racists', and be the end of multiculturalism, nay, the end of Australia as we know it. Australia's race discrimination commissioner went far beyond hyperbole, even, when he said that S18C guards against a repetition of the Holocaust because'genocide begins with words'.
5) Misrepresenting the general law