Free Speech vs 'Anti-Vilification'

by Victor Gunasekara

An insidious threat has recently developed to the principle of Freedom of Speech and Expression, which has been a fundamental tenet of Humanism since its inception. This has come in the form of so-called laws against racial and religious 'vilification'. These laws are presented as being based on high principle but when examined closely they present a serious threat to hard-won human rights, especially when other ways exist to secure the same goals. Those who demand such laws often come from places where freedom of speech is not known, or have atrocious histories in the suppression of free thought.

What is alarming is that the demand for such laws is increasingly acceded to by politicians and bureaucrats who have a vested interest in the matter even in countries long committed to democracy and free speech. The matter is complicated by the high moral ground on which demands for this particular kind of regulation is articulated, and the claim tht these laws do not pose a threat to free speech. It is time that Humanists and indeed the general public examine the basis for these claims.

The Situation in Queensland

A recent development in Australia has given urgency to this question. This is the attempt to write into law so-called anti-vilification laws. In Australia New South Wales has the unenviable reputation of leading the way in this regard. Now the Queensland Government has followed suit.

This is announced in a news item entitled "State Government introduces tough new anti-discrimination laws" Diversity Affairs, a State Government publication issued by Multicultural Affairs Queensland. The description of the new law as an "anti-discrimination law" is incorrect: it is a law prohibiting the free expression of opinion. This article states:

"People who publicly incite hatred by threatening violence on racial or religious grounds could face jail under new legislation announced recently by Premier Peter Beattie and Attorney-General Matt Foley. Mr Beattie said that racial or religious vilification was unacceptable in Queensland. "The Government is committed to protecting and celebrating our state's rich social and cultural diversity. Multiculturalism is our great strength" he said.  The legislation will target all public forms of racial and religious hatred, including speech, writing, displays, signs, gestures, graffiti and electronic forms of communications.  The intention is not to deny people freedom of speech or stifle debate on issues of public importance, but to prohibit acts that undermine the social stability and cohesion of our community".

"Mr Foley said the Bill strengthened existing protection against racial and religious vilifications with provisions of both civil remedies and criminal sanctions. The introduction of these laws was a promise made by me on behalf of the Labor Party at a major public meeting prior to the 1998 election, when racial vilification was a live issue. In the first instance complaints of vilification will be dealt with by the Anti-Discrimination Commission where the emphasis, as with existing legislation, will be on conciliation. In the case of serious offenses where someone threatens, or incites others to threaten physical harm towards a person or group or their property, the matter will go before the Courts. The maximum fine for an individual convicted of serious racial or religious vilification will be more than $5000 or six months imprisonment, or in the case of a corporation, a fine of more than $26,000. Mr Foley says a number of safeguards would be put in place to strike a balance between an individual's right to freedom of speech and the right to live free from racial and religious vilification.  The laws only apply to public, not private, acts and there will be a number of exceptions to the general rule based on traditional defences that apply in defamation law. ( Diversity Matters, 10, December 2000, pp.6-7).  

A defence of these anti-vilification laws, calling them a "matter of rights", is also provided by the Executive Director of Multicultural Affairs Queensland Mr. Uri Themal (who is also an officiating Rabbi, although this is not mentioned in the article in question) in the same issue of Diversity Matters (p.7).

A detailed examination of the new Queensland anti-vilification law from a legal point of view is not attempted in this article, and will have to await a future issue of this Journal. But some of the statements made by Premier Peter Beattie, Attorney-General Matt Foley and Executive Director Uri Themal do raise a number of issues that needs to be addressed now. The question of anti-vilification laws do not only concern those States which now have them on the statute books, but is a general issue of fundamental rights which have always been of concern to Humanists. What is argued here is that specific anti-vilification laws are not necessary and there are other Common Law of achieving the same results, which do not pose such a threat to the principle of free speech.

What is Vilification?

Crucial to any anti-vilification law is the definition of what constitutes vilification. Unfortunately this is not explained in any of the articles announcing this important addition to Queensland law. Nor are any examples given of concrete acts of vilification. As is well known the prosecutions for vilification in the jurisdictions that have such laws are rather rare. So we do not have a lot of examples of the thing that is really proscribed.

No doubt the legal text will contain some definitions. But as with legal terminology what it really comes to mean will depend on court interpretations and decisions. What politicians who enact such laws have to make clear what they mean when they frame these laws in clear and unambiguous terms. Explanation given so far are far from being satisfactory.

Insteat of providing a definition of vilification and giving examples of it the defenders of anti-vilification law resort to the expedient of using undefined and clearly value-loaded terms which may mean different things to different persons. The synonyms used clearly have negative value connotations and all the nuances implicit in these terms are surreptitiously ascribed to persons allegedly harbouring tendencies to racial and religious vilification.

A term frequently used as a synonym for vilification is that they are acts of a hateful nature. Thus Premier Beattie speaks of "public forms of racial and religious hatred". The same terminology is adopted by Rabbi Themal when he speaks of the law prohibiting "public forms of racial and religious hatred". He also speaks of ethnic and religious communities being worried about "hate material" even though such material if often generated by other ethnic or religious groups.

One would assume that hate is motivation for certain acts and is something different from the acts themselves. It is often difficult to infer the motivation for acts even though the acts themselves can be clearly described. Even self-confessions as to motivation may be intentionally misleading How Premier Beattie and Rabbi Themal have determined that the acts they refer to are motivated by "hate" and not some other motive is not stated. To base legislation on motives and not on clearly defined acts is bad jurisprudence.

Dictionaries do not give much help usually resorting to circular definitions. Webster's New World Dictionary defines the verb to vilify as "to use abusive or slanderous language about or of; caluminate". This is somewhat better than the hate criterion, but when the specific terms used are looked up they throw up many areas of ambiguity. It must not be thought that reasonable people would object to laws which restrict slander or abuse. In fact laws to that effect have existed for a long time and not created any problem for those concerned with civil rights. It is the attempt to extend this existing body of legislation, and to give special treatment to race and religion that is denied to other human characteristics which can equally be subjected to calumny or abuse that must concern those who argue that anti-vilification laws have a different agenda all of their own.

Libel, slander and defamation have attracted a large body of judicial interpretation even though there is no unanimity in different jurisdictions. In the United States much greater latitude is given to expressions in this regard than is the case in the British legal system. Australian practice seems to follow the British rather than the American system. So laws in this regard as they currently exist here are more restrictive than it is in many other jurisdictions. In this regard any attempt to enlarge the scope of these laws must be undertaken with great care.

In the absence of a clear definition of the terms involved one may to statements in the racial and religious arenas to which some people have objected.

Vilification and Blasphemy

In some jurisdictions anti-vilification laws are confined only to racial comments and not religions comments. However all three of the persons who have justified the Queensland law have specifically stated that its scope extends to both racial and religious comments. This section will look at the extension of the law to religion.

The law as it relates to religious comments have disturbing parallels with the law on blasphemy. As is well-known the blasphemy law has not been frequently invoked. This in turn is an indication that this law has earned public ridicule. This law is a remnant of the age of intolerance when people who questioned the absurdity of supernatural claims were tortured and executed. Centuries of agitation by humanists have progressively trimmed the harsher edges of the blasphemy laws, often making them dead letters, but unfortunately not succeeding in their complete repeal.

The anti-vilification law as it applies to religion can be considered as an attempt to revitalise the blasphemy law through the back door. The fact that religious priests, Bishops, Imams and Rabbis are those most in favour in anti-vilification laws seem to give substance to the view that it is seen by these religionists as a substitute for the generally discredited blasphemy law. The paradox is that the history of religion is full of intolerance against rival beliefs, and intolerance which has not stopped at "vilification" but has extended to torture and murder. When these priests now shed tears in defence of others allegedly religiously maligned one is entitled to question what their real motives are. They an rarely repudiate their past actions because these are usually enshrined in the eternal Word of God.  In recent articles in this Journal we have discussed the attempts to re-vitalise blasphemy laws in other countries. The current efforts in Australia to outlaw so-called religious vilification can be taken as the counterpart in this campaign of growing religious intolerance towards liberal ideas.

Vilification and Multiculturalism

Another question that has to be raised is the relationship of vilification to multiculturalism. The term multiculturalism presumably applies to a situation where the citizens of a country belong to two or more "cultures" (whatever be the ingredients said to constitute culture) and no one culture is legally established. There is hardly any country in the world which is not multicultural in this sense. Australia ceased to be "mono-cultural" when Aboriginals were admitted to legal citizenship and the White Australia Policy was dismantled. In doing so Australia conformed to international norms and ceased to be a pariah in this regard. It should not be regarded as a great achievement to be broadcast from rooftops.

Why multiculturalism is now promoted is not because Australia is doing something unique not found anywhere else but because a self-serving lobby of bureaucrats and politicians have seized on this for their own benefit. They have to seek ways and means of promoting their empires and anti-vilification on 'multicultural' grounds is one way of ensuring this. Many of them seek to woo support from groups coming from countries with no tradition of free speech or democracy.

Rabbi Uri Themal adduces the following argument in this regard:

"Our democratic society is based on pluralism and the acceptance of diversity as key pillars on which its structure rests. If minorities within the pluralistic democracy have their rights threatened by incitement to religious and racial hatred, their civil liberties are denied and democracy is undermined." ( op. cit.}

The error here is to identify pluralism only with racial and religious pluralism. Pluralism comes in a variety of forms: different belief systems, political opinions, physical and genetic differentiation, sexual preferences, tastes in music, sport and the like, intellectual aptitudes, etc. Indeed the list is endless. What Rabbi Themal has to show why out of this veritable plethora of pluralistic diversity only the characteristics of race and religion have to be isolated for special legislative attention. If laws are needed to support pluralism then they should be framed in such a way to encompass the full spectrum of pluralistic diversity. Indeed this is what the Common Law is supposed to do. It is even handed in its dealings. If it is not now doing so then the Common Law should be strengthened. This does not require the introducing special laws to protect favoured areas, which is itself discriminatory to start with. It would disadvantage those "cultures" which treasure free speech and would be "anti-multicultural".

When religion is introduced into the multicultural equation some serious problems are raised. Christians hold that Jesus was the son of God. Jews and Muslims do not. If a Jew or a Muslim were to proclaim what they regard as the truth in this matter it may offend a Christian and might even "incite" another Christian to attack the Jew or Muslim who is making the statement. Or the Christian might take the statement to be an expression of "hate" towards Christians. He could claim that this statement is "vilification" and might seek penalties under the anti-vilification legislation. According to Attorney-General Matt Foley this complaint will "in the first instance ... be dealt with by the Anti-Discrimination Commission". Given some of its recent findings, e.g. in relation to the barring of Humanists from University Chaplaincy services, it is extremely difficult to see how the Commission could resolve whether the Christian or the Jewish-Muslim claim is true, and whether the utterance has not amounted to "incitement" for action by some disgruntled religionist. This simple example exposes the dangerous grounds which can arise from enacting anti-vilification legislation.

The case of Dr Yunnus Shaik in Pakistan who is accused of vilifying the Prophet Muhammad on the basis of his statement that the Prophet was not a Muslim until the age of 40, reported elsewhere in this Journal, provides a chilling example of what could happen if such laws are placed at the hands of religious bigots.

Rabbi Themal also speaks of minorities having their rights threatened as if the "rights" of the majority cannot be threatened by a minority. The question of whether you are a minority or a majority does not matter, rights should be the same for all. If a person's safety is threatened a common law offense would have been created and neither the status of the person nor the grounds on which the threat is made should be a material factor.

Vilification and Human Rights

Anti-vilification protagonists claim that the enactment of this kind of legislation is required by human rights. This claim cannot be entertained, and the contrary is the case. Generally accepted Human Rights does not permit the kind of penalty on opinion which is implicit in anti-vilification law..

It must be remembered that anti-vilification does not require that any act be committed against some person or body but only that a view be expressed which might incite somebody to commit such an act. There is no question that the commission of such an act is an offense and is covered by the existing common law. But the tenuous link which the supporters of this kind of law make between the expression of views and the commission of acts is not warranted. If a view which in itself is a statement of belief "incites" somebody to do a lawless act then it is the person "incited" who has to face the consequences.

In fact to deny the right to express views on the ground of such possible links constitutes a violation of existing human rights law. This fact seems to be recognised by some apologists for anti-vilification law. Once again we may quote from Rabbi Themal:

"The other consideration is that neither freedom of speech nor any other civil right is absolute. All civil rights including the freedom of speech, are limited by ethical and social consideration in terms of establishing behaviour which is acceptable to the majority of the population and helps our society to function" ( op. cit.)

There seems to be a serious misunderstanding of the limitations of human or civil rights. The limitation on speech in not on "ethical and social considerations" but on the ground of deliberate malicious material damage to persons or their reputations. Even so the question of the truthfulness of the utterance is relevant. It is in terms of this principle that slander and defamation laws exist. If A says that B is a murderer and if this is not true then A's freedom of speech is limited and B can claim restitution. This recourse is not available if what A says can be shown to be true. But such considerations are not usually present in anti-vilification laws.

Besides if as Rabbi Themal states that civil rights and freedoms are not absolute why should one make the right of not being vilified (if such a right exists) an absolute right? Why should the right of the freedom of expression be sacrificed to defend the right not to be vilified? One might with equal validity sacrifice the right not to be vilified in order to defend the right of free speech. Indeed it can be argued that the latter position is the more reasonable one to take.

Problems with Anti-Vilification Laws

There are several difficulties with anti-vilification laws in addition to the major difficulty of arriving at a meaningful definition of vilification.

Firstly it represents a step back. In the 1950s when there was a spate of prosecutions of publishers and authors for obscenity and the like Lord Chorley wrote: "Have we in fact made greater intellectual progress under the freer conditions of the modern world than was made in earlier ages which were less free? This dilemma is put admirably by the famous American lawyer O. W. Holmes Jnr. in a letter to Sir Frederick Pollock in which he says of free speech: 'In the abstract if have not very enthusiastic belief in it, though I hope I would die for it'. It was Holmes, of course who enunciated what might be termed the acid test for the classical conception of freedom of thought - that it was not a question of thought being free 'for those who agree with us but freedom for the thought we hate' " ("Freedom of Discussion Today", The Rationalist Annual, 1956).

Today in the age of the Internet we have moved into a world of massive intellectual inter-connectivity and freedom. Those who hate this freedom, like the advocates of anti-vilification laws, have sought to extend their claws to the Internet itself. The nature of this medium is likely to frustrate their best efforts. To those who fulminate against the existence of "hate pages" on the net it must be pointed out that unless someone actively seeks them, they will do no harm. Even if they are banned the hate seekers will still be there, perhaps ventilating their hate in more destructive ways. And just as anti-pornography crusaders are the greatest customers of porn so the anti-hate merchants are the people who most assiduously seek the hate pages.

The Positive Solution

As has been mentioned earlier the real solution is not to enact special legislation but to reform the Common Law if it is in need of reform. Special laws protect special people, the Common Law protects all. If we examine the Common Law closely it will be seen that provisions already exist to cover most of the contingencies adduced, and only minor changes are necessary.

The term vilification covers several things: (1) actual harm to persons (e.g. assault) or property (e.g. graffitti). These can be dealt with under common law. (2) Incitement to commit acts again specific persons or groups. This too can be brought under the ambit of common law and in some cases would also come under civil law.. (3) Statements which are not directed against specific persons but are opinions expressed about different races, ethnic groups and religions. These should not be the subject of any anti-vilification law. This is the only case for which a common law "remedy" may not be exist, but the "malady" can be rectified without the need of special laws.

In the first case education, discussion and debate is the best possible way. here are many positive solutions to the third case listed above. Thus if somebody denies the "holocaust" the evidence for this should be rationally considered. Similarly so called derogatory remarks about racial characteristics could be investigated for their truthfulness or otherwise.

With regards to people being "hurt" or "incited" by allegedly derogatory comments about their race or religion, then the trouble is more with the people who claim to be hurt. They should turn to the elders of their community, or to their priests, bishop, rabbis and imams and ask them whether the statements they get offended at are true or not. Their community elders and religious priests have an obligation to see that their "flock" acts in a resonable way in the face of "provocation". It is the failure of these people to enlighten their flocks that is very often the real cause of the trouble.

There should be a Bill of Rights in which Freedom of Speech should be an entrenched provision out of the control of politicians and bureaucrats. The US has the First Amendment in the Constitution, and many democracies have even stronger provisions. It is the enactment of this kind of legislation which should engage the attention of the Premiers, the Attorneys General and the Directors of Multicultural Affairs in Australia.