Rethinking 18c

For the past few years, the free speech debate in Australia has been conducted vis-à-vis a series of public incidents of racism, sexism, and other forms of discrimination: Andrew Bolt cynically targeting Aborigines, rednecks on public transport hurling abuse at ethnic groups, a girl making a racist slur at Adam Goodes, and most recently, Wicked Campers displaying cruel slogans about women. Every time a notable incident like this emerges, we can’t help but use it as a proxy for the broader debate about whether it constitutes hate speech, and if so, whether it should be illegal.

In each of these situations, we assume to know what’s at stake: the so-called ‘right to be a bigot’, weighed against the right not to be discriminated against. So far, in any given incident, we’ve generally been able to tell who the perpetrators are, and who the victims are. With that, it’s been obvious where the responsibility and vulnerability lie. These episodes have lent themselves to easy public moralising.

In a way, this is unfortunate, because these incidents have done little to probe our intuitions about the broader issue of free speech in a way that doesn’t merely reinforce the position we held the last time we witnessed something similar in the news cycle. Coupled with the polarising nature of its most prominent advocates George Brandis and Tim Wilson, and we’ve arrived at a point in the discourse where genuine debate about the virtues of free speech, or conversely, the dangers of hate speech, has all but ground to a halt.

With this in mind, it’s worth considering how a different scenario – one which is more ambiguous, and hence less easily moralised about – might breathe some new life into the discussion.

Lets assume that an Aboriginal woman writes a searing, insightful, ‘check your white privilege’ article about Andrew Bolt, which gets printed in a mainstream newspaper. In it, she uses him as an example to illustrate how our culture funnels white Anglo-Saxon males toward success, at the expense of racial minorities.

The article goes viral, because it so effectively mocks the cherished assumptions about life opportunities and ‘hard work’ that undergird the cultural image of the white, privileged, yet apparently ‘self made’ man. Let’s also say that Bolt is genuinely humiliated by the article, not because it contained factual information that was untrue (which could be grounds for defamation), but because it exposes his racial worldview as naive and simplistic.

Then suppose, despite past proclamations about the right to free speech, Bolt decides to press charges under the Racial Discrimination Act, as a way to test whether the law would be equally harsh to the Aboriginal author as it was to him in 2011. Bolt feels as though he has a case, since the tone and intent of her article, along with its racially loaded subject matter, would be enough for it to be deemed discriminatory. He bases this on the ruling from the discrimination case made against him, where the judge ruled that even if he had gotten all his facts right, the law still demanded that the article needed to be written ‘reasonably and in good faith’ – something the ABC’s Jonathan Holmes has pointed to with concern.

If the RDA is applied to this hypothetical case as it was to Bolt’s, then it seems like it should be grounds for prosecution. The law doesn’t make a distinction between whether a racial group is a vulnerable minority, or privileged majority. The RDA only seeks to prohibit racial discrimination – period. That being the case, Bolt would be right to accuse her of racism.

But wouldn’t we want to protect that Aboriginal woman’s right to express her view in the way that she sees fit?

In my reading, Section 18C of the RDA and the judge’s statements from the Bolt ruling say to her: “Sure, you’re free to express your racial minority’s discontent with decades of mistreatment at the hands of whites - but only if you do it politely, and have the right tone.”

Given that white Anglo-Saxon culture has done it’s darndest to wipe out Aboriginal people and culture for a significant part of the time they’ve cohabited Australia, I’d say we’re in no position to dictate how they might care to express that grievance – particularly if it targets an individual that embodies the kind of white power and privilege that comes at the expense of Aboriginal welfare. It’s also problematic that the RDA would seek to curb an individual’s expression of a racially based protest sentiment toward a dominant white culture, when our socio-economic policies have inflicted racism on her people at a systemic level on a daily basis for decades.

As it’s currently interpreted, Section 18C serves as a reminder that the terms of debate favour consensus – which means they favour the powerful. The marginalised parts of the community are prevented from seriously challenging public figures that most visibly contribute to their marginalisation; while those with power, opportunity, and cultural capital are given the protections to keep it from being undermined.

We may think Section 18C is a shield to protect the vulnerable against vile and damaging forms of hate speech. But, in the hands of some, a shield is also a weapon. By not allowing legitimate, and – yes, arguably ‘racist’ – critiques of entrenched white privilege to be voiced, 18C actually gives the powerful yet another means of reprisal. Or worse still – it means that we might never hear the truths of an ongoing racist co-existence that we need to hear.