A meditation on balancing free speech with wisdom, compassion, and respect for human rights. Examination of the value of anti-vilification laws meant to foster social cohesion. Pushing free speech to 11, and a gratuitous Spinal Tap video!
Over the years I’ve tried to cultivate the capacity to look deeply at things, to avoid pushbutton positions on issues. In viewing media coverage of the tragic and unwarranted attacks on Charlie Hebdo, it was hard not to be moved by the millions of people and organizations who began sporting “Je Suis Charlie” banners in solidarity with those killed. Yet I couldn’t quite jump on the bandwagon. Maybe there’s something wrong with me, I thought.
A couple of days later, I discovered I was not alone. There was a countermovement of people who felt horrible about the terrorist attacks, but also felt like total identification with Charlie Hebdo was too simplistic a response.
You see, I often write in favour of religious tolerance, and speak out against vilification of spiritual minorities. I feel that to build a more civil society, we need to respect each other’s sensitivities, and not be in each other’s faces with our differences.
I sometimes (foolishly) leave cable news playing when I go to sleep. As a result, my subconscious becomes an unholy message wall — a pastiche of political and advertising slogans, a Cuisinart of soundbites from the chattering class. Two phrases recently stuck in my mind:
- offending for the sake of offending
- satire should thrust up not down
What do these phrases mean to you?
Elsewhere, I’ve pointed out that some Commonwealth nations have enacted anti-vilification legislation which doesn’t seem to have impacted free speech, but does seem to have cut down on gratuitous hate speech targeting minorities.
In posting about cyber civil rights, I’ve echoed the views of feminist law professors like Mary Anne Franks who claim it’s a myth to think that legislation designed to cut down on hate speech would mean the abolition of free speech as we know it. It is possible to distinguish between heated debate on issues of consequence, and hateful or harassing speech intended to drive people offline (particularly women and minorities), in effect silencing them.
A key point made by cyber civil rights advocates is that free speech is only maximized when speakers from marginalized groups aren’t driven from the public square by hateful depictions hurled in their direction. This implies that to create a more civil society, we need a better balance between free speech on the one hand, and speech which intentionally tries to inflame hatred.
Such a distinction is not new. Though you’d hardly know it from the way that popular debate is framed, the courts have long distinguished between so-called “low-value speech” like insults and fighting words, and speech more worthy of full constitutional protection:
Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.
— U.S. Supreme Court in Chaplinsky v. New Hampshire
Those familiar with Rob Reiner’s satirical “rockumentary” This Is Spinal Tap would recall the scene where lead guitarist Nigel Tufnel explains how his Marshall amp is better because all the knobs go to 11:
Like this, there’s a myth that simply by pushing free speech to 11 one would somehow get more or better democracy. In fact, what one actually gets is louder, more obnoxious democracy which is not qualitatively better, but where people are often at each other’s throats, leading ultimately to violence.
The ideal balance is robust freedom of speech tempered by wisdom, compassion, and respect for human rights. In her “Hate on the Net” Evelyn Kallen makes the point that freedom from vilification is a human right, one which needs to be balanced against freedom of speech. This is a concept worth revisiting in light of the tragic attacks on Charlie Hebdo and the broader implications for social cohesion in societies which are multi-racial, multi-ethnic, and multi-religious (of which France and America are but two).
One of the Commonwealth nations experimenting with anti-vilification legislation is Australia. Yet, as an American my ears are constantly stuffed with doomsday scenarios about what would happen if free speech laws were tweaked to the slightest degree. It’s almost as if some American companies are profiting from Internet and media food fights — spectacle as cash cow. Would less hate speech mean less profit?
I sometimes wonder if we as Americans are fed a diet of sham freedoms: the freedom to yell and scream, and to choose from 20 different brands of toilet paper at the supermarket, but not the freedom that comes from living in balance and harmony. Life in the mainstream is good for many people, but for others it produces genuine alienation, which reasonably leads people to explore peaceful spiritual alternatives. But I digress…
It seems worth asking how anti-vilification laws are working out in Australia, and examining the rationale behind them. Below are extended quotes from proponents of such laws. I’ll begin with Helen Szoke, who in 2005 was Chief Executive, Equal Opportunity Commission, Victoria.
Let me preface by saying that for some people, their religion or spiritual practice is not something they can or would easily change. It’s part of their core identity, and contributes much to the meaningfulness of their existence. I would argue that just as some people rally around race or sexual preference as immutable aspects of the self, for others it’s their spirituality which defines them. Now on to the quotes…
Religious vilification laws support our culturally diverse community
Freedom of speech is important, but it is not absolute. It does not mean you can say whatever you want, whenever you want. Just as the laws of defamation outlaw people who make comments that could damage a person’s reputation, the Racial and Religious Tolerance Act outlaws the vilification of another race or religion. In essence, the Act is there to help us value our cultural diversity and ensure that we live in peace and social harmony.
There has been a recent spate of articles referring to the need to overhaul the religious section of this Act. The argument is that race is something we cannot change, whereas religion is about belief and should be open to debate with individuals free to choose the religion they practise.
There is nothing in the Racial and Religious Tolerance Act that diverges from the premise of such an argument. The purpose of the Act is to ensure groups and individuals are able to reasonably debate religious differences and do in fact have the freedom to practise the religion of their choice without fear that they will be subjected to acts of hatred.
[Columnist] Pamela Bone’s recent article in The Age concludes that laws against religious vilification are a mistake on the basis that “beliefs are about ideas and ideas must be open to debate, to criticism and even ridicule.” Her article, which questions the culture and beliefs of Muslims, is testimony to the fact that reasonable discussion about race, religion or traditions is not grounds for a complaint of vilification. The discussion of conflicting ideas is integral to a democracy and indeed to the development of a community that thrives on diversity.
Victoria is Australia’s most multicultural state and the majority of Victorians value our cultural diversity. According to the 2001 Census, almost one quarter of the population of Victoria was born overseas, 180 different languages and dialects are spoken and 116 religions are followed. Inclusion and diversity is an asset that we must continually work to protect and safeguard. Acceptance and tolerance among different racial and religious groups is essential in order to maintain social harmony and productivity.
Richard Florida’s book, The Rise of the Creative Class lists “a tolerance of diverse lifestyles” as a key factor contributing to creative economic growth. A homogeneous culture does not lead to growth — social, cultural or economic. The Racial and Religious Tolerance Act is designed to support such a society, not to stop people expressing their views in a reasonable manner or engage in healthy debate.
When considering vilification and acts of hatred under the Act, it needs to be recognised that we are considering the most extreme point in the continuum of prejudice. It is its lowest ebb — where the holder of particular views as to that which is right, good or normal, is not content to simply hold those views, rather, he, she or they seek to advance those views through acts of physical or verbal violence and aggression.
A good way to think about vilification is as the promotion of hatred. The promotion of hatred requires some positive action to encourage others to also hate. It is one thing to personally feel hatred; it is another thing to actively talk it up and encourage others to feel it as well. Conduct that promotes religious hatred is potentially unlawful where it would be expected that the conduct would be seen or heard by members of the public, such as at a public meeting or forum.
The Act expressly states that behaviour that is conducted reasonably and in good faith for a genuine academic, artistic, religious or scientific purpose does not constitute vilification. This means that we are able to have robust debate about religion, we are able to criticise and disagree with the beliefs of another religion, and we can do so openly and publicly. What we can’t do is to actively promote hatred of another religion and its followers.
Racist and religious hatred does indeed cause serious harm to both the individuals targeted by the act as well as to the racial, ethnic or religious group to which they belong. It can have serious emotional and psychological effects, as well as creating a sense of non-belonging and making social inclusion in the community difficult for certain people.
Racial and religious hatred can lead to acts of physical violence. Throughout history there exist numerous examples of civil unrest, war, or genocide which have racial and religious intolerance at the core. Take for example, the Protestant-Catholic conflict in Ireland, the systematic annihilation of Jews in Nazi Germany, the war in Serbia or the burning of witches in the middle ages. In Melbourne, the recent serious arson attack on the Turkish Muslim Isik College demonstrates how racial and religious hatred can translate to an act of violence.
— Helen Szoke, EOCV, 2005
What Helen Szoke says jibes with Evelyn Kallen’s views in “Hate on the Net”:
As a highly pernicious form of invalidation ideology, hate propaganda rationalizes, legitimizes and incites harmful discriminatory action against minority target groups. … [H]ate propaganda represents probably the most malignant expression of invalidation ideology, for it not only inferiorizes target populations, but it also singles them out as dangerous and threatening to society. Following from this premise, hate propaganda urges its audience to take steps to eliminate the purported threat. The audience is urged to unite and to take concerted action to protect society by disempowering, expelling, overthrowing or annihilating the minority target group identified as the source of the threat. By so doing, hate-mongering violates the fundamental human rights of targeted minorities to freedom from vilification, harassment, and harm.
— Evelyn Kallen, from “Hate on the Net”
Like Szoke, Kallen is underscoring the connection between hate propaganda (speech) and vigilantism (action). Hate propaganda can lead to church-burning and temple-burning. Consistent with other thinkers on cyber civil rights, Kallen notes:
These violations of minority rights are allowed to proceed unchecked because those with the power to decide; with the power to order our priorities with regard to human rights, can argue, persuasively, that to introduce constraints on hate-mongering by organized political and religious hate groups would violate our preciously safeguarded and fundamental rights to freedom of expression, freedom of association, and freedom of religion. A human rights dilemma of giant magnitude, to be sure. So whose human rights continue to be violated? Not the rights of those with the power to decide, the established majority powers, but the rights of vulnerable, stigmatized minorities, the identified targets of cyberhate.
This is of a piece with Mary Anne Franks’ discussion of “free speech elitism.” I agree with Kallen in theory; though when conflicts drag on over centuries and continents, exactly who is powerful or vulnerable on a macro or micro level becomes a complex question.
Another useful analysis is provided by Gary Bouma, who essentially stresses the value of the law as a teacher. Note that his points about the need for inter-religious comity also apply to the need for comity between spiritual groups and secular anti-cult groups. The latter tend to routinely vilify the former, describing them with “negative stereotypic and inaccurate language.”
Gary Bouma is professor of sociology at Monash University, associate priest of St Dunstan’s Anglican Church, Camberwell, and vice-chairman of The World Conference of Religions for Peace, Australia.
Why Costello is wrong: vilification laws send a strong message
Those who would vilify others on religious grounds must be deterred by punitive laws, writes Gary Bouma.
[Australian politician] Peter Costello argued … that we should not “resolve differences about religious views in our community with lawsuits between the different religions.” However, it has been a long-standing Australian and Judeo-Christian tradition to take religious issues to the courts for settlement.
The issue he referred to was not a difference about religious views, but occasions when one religious group uses negative stereotypic and inaccurate language to describe another group. Costello simply does not seem to understand the need for religious groups to behave honestly and honourably in their relations with each other.
Victoria introduced religious anti-vilification legislation in 2001 to promote harmony in inter-faith relations. Before this, religious groups feeling they had been vilified had no recourse to law, unless they could approach the courts as an ethnic group.
In the bad old days of Australian sectarian rivalry there was a great deal of religious vilification. Some of it was perpetrated by priests and ministers of Christian churches. Some religious people continue to feel it necessary to speak ill of those who believe or practise differently. Doing this does not speak to me of religious maturity, but insecurity. Some vilification is simply loutish. Whatever the source, it is injurious to others and to the quality of life in Australia.
However, to attribute to a whole group the characteristics of a few members of a religious group, or sentiments held elsewhere, or practices occasionally found elsewhere, is to engage in stereotypic thinking.
When these attributions are negative and cause Australians to become fearful of their neighbours on account of their religion, then vilification is occurring and our social fabric torn.
All societies regulate inter-group relations formally and informally. We have expectations about what is fair, reasonable and permissible. These expectations change over time. In the last century there were a number of efforts to change such expectations. One tool in making these changes is legislation. So we enacted and enforced civil rights legislation, anti-discrimination legislation and anti-sexual harassment legislation. I think our society is a better place for all as a result of these changes.
Costello seems to argue that we do not need religious anti-vilification legislation because polite societies based on Christian values do not engage in this sort of thing and law is a rough tool for promoting good behaviour. This old chestnut is trotted out every time legislation of this sort is proposed. Change the hearts of the citizenry, rely on good common sense, point to good examples, and right will prevail. Perhaps. But the evidence points the other way.
Make a certain type of behaviour illegal and a powerful message is sent to those who might be wavering, to those who consider a little anti-Semitism a part of polite conversation, or to those who think it permissible to make disparaging comments about someone who dresses differently on account of their religion. Sexist language is heard much less often now, even in all-male company of those over 50. Why? Because the social cost of engaging in it has been made punishing. The tools making this change were legislation and regulations put in place to change corporate cultures. State legislation came first.
Our sister society, Ontario in Canada, takes these matters so seriously as to make religious vilification a criminal offence. Last year a person was charged, convicted and sentenced to “concurrent conditional three-month sentences … followed by two years’ probation.” This conviction and sentence was upheld in two appeals.
In cases of religious vilification, the core issue is public order and the restraint of such speech as might cause inter-group conflict and violence. The main aim is to protect the right of religious groups to exist and to pursue their business without undue harassment from others and to make less likely prejudicial and stereotypic thinking that would lead some Australians to be fearful of other Australians on the basis of their religion.
— Gary Bouma, The Age, June 1, 2004, reprinted here
It seems fitting to close with a brief quote from Justice Robert R. Thomas of the Illinois Supreme Court, who spoke thusly:
It has been said that the law is a teacher. That through its mandates and proscriptions, society is schooled in what is right and what is wrong, what are the acceptable standards of human behavior, what are the rules defining and governing proper human interaction. Our task, our responsibility, is to ensure that the law is a good teacher. And in moments such as this, when trust breaks down, to respond in such a way that the best angels of our nature are reflected not only in the law’s words, but also in its enforcement and application. Every time. No exceptions. And to the extent each of us plays a part in making that happen, I hope and expect that the justice we pursue, and the justice we bring, will be utterly unimpeachable.
— Justice Robert R. Thomas, speaking before the Illinois and Chicago Bar Associations, as quoted here
So why don’t I just join the crowd and say Je Suis Charlie? Because I want to mourn their loss of friends and colleagues, but not identify with everything they do. Pushing free speech to 11 won’t solve society’s problems, ours or France’s. What’s needed is more wisdom, more compassion, and a genuine feeling of tolerance toward all major and minor sects who conduct themselves peaceably. And just maybe it wouldn’t hurt to follow the example of some of our friends in the Commonwealth.
The views expressed are my own, and do not represent any other person or organization.