“A Right to Be Bigots”?

Following the January attacks on the Charlie Hebdo office in Paris, the whole world is engaged in a debate on religious respect and free speech. Whatever you may think of the magazine, nobody can justify terrorism or violence in response to offensive comments, which is why the “Je suis Charlie” message has resonated so strongly. Remembering that comedy and satire are generally exempt from speech laws, the Charlie Hebdo debate connects to a much larger one: where is the line between preventing discrimination and defending free speech? What do we consider censorship, and what do we consider necessary for the good of society? It’s a debate Australia has been having – in regards to race rather than religion – since early 2014, and particularly pertinent as our grief and outrage following such tragic acts threaten our reasoning when it comes to speech, human rights and justice.

The Racial Discrimination Act of 1975 (or section 18C) makes it illegal to perform an act in public which is reasonably likely to “offend, insult, humiliate or intimidate” someone based on their “race, colour or national or ethnic origin.” [1] In March 2014 the government proposed hotly debated changes including replacing “offend, insult and humiliate” with “vilify”, and adding two subsections. The first stated this should be judged by “the standards of an ordinary reasonable member of the Australian community”, rather than those of “any particular group within the Australian community”. The second posed a long list of exceptions: the law would not apply if the communication was “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” [2] Not only do the vast exemptions make one wonder if the law would be at all effective, but these subsections beg the question: who is an “ordinary” Australian? Would an individual from a racial minority be counted as an “ordinary, reasonable” Australian, or would they be judged as representing a “particular group”?

The instigator of the proposed changes, George Brandis, famously stated in parliament: “People have a right to be bigots, you know.” Alarming values to be championed, which also seem to ignore that the law only applies to public communication – in private, you can be as bigoted as you like. But what he meant is people have the right to free speech, even if it is potentially offensive and discriminatory. Australian Human Rights Commissioner Tim Wilson agrees, writing: “We restrict harassing speech that incites violence because it harms the physical security of others… We don’t restrict speech that merely offends the sensibilities of others.” [3] He argues racial discrimination should be regulated by societal pressures, not by law. That if someone says something deemed unacceptable by the rest, they will be shouted down by the masses.

He has a point that we should avoid over-censoring, but he overlooks a couple of crucial facts. John Budarick identifies one [4]: free speech is not equal speech. Minority groups have significantly less access to mainstream media, making it difficult to represent themselves, and in the same vein to “shout down” the haters. Another concern is the very real impact of racism in the public sphere: in fact, section 18C was introduced in response to inquiries which found not only that racial discrimination has profound psychological impact, but also that it leads to more severe forms of violence or marginalisation by implying acceptance of this kind of behaviour [5].

It is also important we look at what “free” really means, a concept Abraham Lincoln nailed (credit to Shamsul Khan, who first applied this to the issue [6]): “With some the word liberty may mean for each man to do as he pleases with himself … while with others the same word may mean for some men to do as they please with other men.” [7] Two contradictory notions, which cancel each other out. In no society are we truly “free” to do as we please, as we are not free to harm others: we value human rights over free action. Defamation laws are a case in point, and the hypocrisy of politicians here has been outlined time and time again, as many use these laws to “censor” free speech in order to protect their reputation.

The Australian government backed down on 18C due to public pressure and political priorities. But as the Paris attacks bring free speech to the fore, the door has been opened to bring these changes back to the table and no doubt similar debates are in progress in other countries. We must always question our laws, which represent values at a given point in time (imagine the state society would be in if we’d never changed any laws: most of us wouldn’t be able to vote, for a start). But we must also stand firm in valuing human rights. It’s a question of priorities: the right to be bigots, or the right to be protected from racial discrimination? I know what I’d choose.

 

Alice Walker.

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