'Hate speech' censorship: the reality

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.