'Hate speech' censorship: the reality

The ordinariness of "hate"

Why all the fuss about so-called "hate speech"? "Hate" is an ordinary English word which bespeaks an ordinary human emotion. The Oxford English Dictionary (OED) entry is, in part, "1. An emotion of extreme dislike or aversion; detestation, abhorrence, hatred." The short answer is that the unhelpful but influential expression, "hate speech", is no more than an ideological label used to dress up the latest manifestation of the ever-present human impulse to gag other human beings from expressing opinions which differ from the censors' approved opinions.

The long answer involves probing the modern censors' attempts to define "hate speech" and contemporary arguments for suppressing selected categories of dissent. The essence of the "hate speech" dogma is that there is a hierarchy of ideas, some superior, some inferior, some approved, some disapproved and to be suppressed.

In 1990, members of the Supreme Court of Canada referred to "hate" as "the most severe and deeply felt form of opprobrium." Reasonable minds will differ as to whether that formula adds anything not conveyed by "extreme dislike".

The reality is that public controversy in Australia is notable for daily doses of "intense dislike" or, in a word, hate. Intense dislike of ideas and those who express them is, in the sense contended for by the late Ronald Dworkin, a "constitutive" characteristic of a free and open and equal society.

Former Prime Minister Abbott and the Leader of the Opposition are hated men. In 2015, there have been as many examples as might normally be expected of their dedicated haters subjecting both men to torrents of vituperation. And megalitres of vitriol have been released in condemning a former Leader of the (ALP) Opposition and a former Justice of the High Court.

In the long Australian tradition of dissent, adherents of conflicting social, economic, political and religious opinions hurl hate-filled epithets at one another. To draw attention to that reality is not to approve or encourage vulgar, scurrilous, bigoted, malicious, or blindly prejudiced habits, or content, of speech.

The volume of hateful language and prejudice increases by the day. For some of the citizenry, the World Wide Web (WWW) is, at best, an agglomeration of humbug, cant, trivia and drivel. And, to borrow the arresting alliterative tag applied by W J V Windeyer QC at the Petrov Royal Commission in 1954, at its worst, the WWW attracts "farrago[es] of facts, falsity and filth", to which might be added - fable, fabrication, fantasy, fear-mongering and fatuousness. And then there is the more recent arrival of social media, a great advance in freedom of communication or an open sewer depending on one's opinion.

In recent times, the selective acceptance of "hate speech" has been evidenced in the conspicuous failure of the proponents of "hate speech" censorship legislation to be troubled in the slightest degree by public exhortations (in one case violent) that then Prime Minister Abbott, anthropogenic global warming "deniers" and persons who "insult" religious ideas and beliefs be put to death. What is "hate" to one person is "truth" (earthly or divine) to another. What is "respectful discourse" to one person is "nauseating" to another.

"Who could disagree?"

Both the self-identifying "Left" and "Right" in Australian politics have their pet doctrinal verities some of which are shared. The dogmatic censorial cast of mind is that since it is inconceivable that that any sane person could disagree dissenters should not be tolerated.

Opinions will, of course, differ, but the "Right" seems more inclined to resort to hatred, contempt and ridicule than imposing legal penalties on the folks they abhor.

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.

Artificiality, Incoherence, Sophistry

Invidious discrimination in employment, in housing, in education and in the supply of goods and services generally – of the kind that is rightly made unlawful - is often evidenced by speech. However, provisions such as s 18C of the RDA which are limitations on any and all public "acts" treat the disfavoured types of "hate speech" content inherently as a form of discrimination.

This legislative fiction inspired the unsuccessful (Christian) claimants in the anti-discrimination case in 1997 against the National Gallery of Victoria who contended that the mere fact that the NGV was prepared to exhibit the work of the artist Andres Serrano,Piss Christ, was to discriminate against them.

This was after the Catholic Archbishop of Melbourne had failed in an attempt to have the Supreme Court of Victoria restrain the exhibition of the controversial work as a blasphemous libel. In his ill-fated attempt to protect the feelings of his fellow Christians, then Archbishop Pell unwittingly did the cause of democracy a big favour by having a court decide, in effect, that the sectarian (Christianity-specific) law of blasphemy was obsolescent.

Modern "hate speech" legislation produces additional incoherence in the law because it is inconsistent with the law of defamation, for example, in so far as it imposes liability for statements that are true or would otherwise be protected by the defence of comment. It also cuts across the regime of common law liability for intentional and negligent infliction of so-called "nervous shock" which requires proof of a recognized psychological disorder rather than mere imputed hurt (minority group) feelings.

And, in so far as it said that "hate speech" is a precursor to violence, the legislation is unnecessary. State and Commonwealth criminal law deals comprehensively with violent crime and threats to public order including threats of and incitements to violence, attempts, conspiracies and associated complicity offences regardless of motivation of the perpetrator or the "identity" of the victim.

Wilful Blindness

The anti-democratic nature of "hate speech" censorship is on full display in the persistent conflating, first, of criticism of beliefs with criticism of believers and, secondly, of religion and ethnicity/race. This menace goes well beyond the diverting sophistry of impenetrable abstract language and patronising claims about "minorities".

Of all categories of ideas that demonstrate that there are no "false ideas", religion is at the apex. In the context of the violence which accompanied the Danish cartoons controversy (2006), Ronald Dworkin made what should be the unsurprising observation that "religion must observe the principles of democracy, not the other way around".

This principle, partly recognized in the Australian Constitution, is now under sustained attack. In 2012, then Prime Minister Gillard told the UN General Assembly that "Denigration of religious beliefs is never acceptable." By way of glaring example of the perversity of that declaration, the fact that the belief systems of all the People of the Book, in varying ways, treat women and homosexuals as lesser members of humankind and discriminate against them is ignored by "hate speech" censors.Why should religious bigotry not be subjected to denigration?

The menace of the contemporary ideological antipathy to open public discussion of controversial religious beliefs and practices is aggravated by its sectarian bias. This is the height of folly. The proponents of "hate speech" censorship ignore the long history of sectarian prejudice and discrimination in Australia and the fact that religion is a matter of choice - mostly exercised by parents afraid that their children will grow up learning to think for themselves.

And then there is the "group think" conceit and contradiction at the centre of "hate speech" censorship, namely, that within each of the protected "minorities" there is not a single individual who has the fortitude, self-respect and courage of conviction which inhere in all humankind.

Misplaced sermonising

"Hate speech" censorship is also notable for an eagerness for neo-Puritanical sermonising about equality. Fair-minded persons will differ about what is necessary to achieve equality. If, for example, it extends to reducing economic inequality, some of the same fair-minded persons might contend that for those members of humankind who are at the bottom of Australian society's economic heap, the "hate speech" censorship legislative crusade has been and is a thoroughgoing waste of effort and public money.