'Hate speech' censorship: the reality

In a 180 degrees turn in less than half a century, what once could rightly/proudly call itself the political "Left" - manifested broadly in the ALP - has become the nation's party of censorship. It has enthusiastically embraced "hate speech" dogma of coerced conformity, "respect" and genteel "conversation".

No false ideas

In 1943, Justice Robert Jacksonof the Supreme Court of the United States articulated one element of the principle of equality in a free and open society:

...[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Another formulation of the principle of equality which is a defining virtue of the jurisprudence of the First Amendment to the US Constitution and which, to date, has been an insurmountable obstacle to "hate speech" prohibitions, was put with clarity and brevity by Justice Thurgood Marshall in 1974:

We begin with common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries buton the competition of other ideas.

The refusal of proponents of "hate speech" censorship to define the expression with any precision has a surface affinity with the experience of US Supreme Court Justice Potter Stewart in 1964 in an obscenity case. After frankly acknowledging that perhaps he could never succeed in intelligibly defining "hard-core pornography", his Honour said: "But I know  it when I see it, and the motion picture involved in this case is not that."Today's "hate speech" censors know their target when they see, hear and read it, and they see it everywhere; however, unlike Justice Stewart, they want to muzzle the folks who give voice to it.

Obscurantism

To the extent that its proponents condescend to define "hate speech", they frequently refer to other abstractions such as "vilification" and "serious vilification". "Vilify" is as ordinary an English word as "hate". The OED entry, in part, is "2…b To depreciate with abusive or slanderous language; to defame or traduce; to speak evil of."

Beyond the use of synonyms, there is a recondite theoretical basis for Australia's hate speech legislation. Its adherents favour abstractions. The suppression of "hate speech" is said to be necessary for the protection of "minorities" who, it is variously alleged, are "vulnerable", "demonised", "oppressed", "marginalised", "alienated", "subordinated", "victimised", "excluded", "targeted", "stigmatised", "subjugated", and so on. These ideological labels are applied as if they were self-evident truths of the human condition.

The legislative language is equally obscure. The most prominent example of "hate speech" censorship, s 18C of the Commonwealth Racial Discrimination Act 1975 (RDA), makes it "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" (italics supplied). This is an incurably vague command. It contains no clear standard of what is or is not lawful.

The dragnet "after the event" approach of s 18C to muzzling dissenters has a long history. In earlier phases in the history of censorship, the political "Left", "progressives", writers, artists and eccentrics, and miscellaneous malcontents were hauled into court for "offensive" speech, or speech which was "objectionable", "obscene", "menacing", "indecent", "abusive", "threatening", "disorderly", and "annoying". Not surprisingly, courts throughout the common law world continue to labour long and hard to give such language meaning.