Ivory tower watch: we don’t need free speech protections when we have vague ideas instead

We’re doing well this week – the last ITW even had a response from the actual academic in question. Since I’m on a high, I figure I’ll let it ride – especially as I have just had the rather painful experience of trawling through ‘What to do about hate speech:
 an “institutionalised argumentation” model’ by Kath Gelber.

Gelber doesn’t believe that free speech protections are needed in racial vilification legislation, mostly because she has a magic formula to find out if a statement should be unlawful. First-off, I’ll highlight this passage if only because it re-affirms my general issue with social scientists trying to talk about law. The law faculty can’t be that far away, you would think that she could walk on over and ask about some of these issues before presenting a paper on them.

[I]t has been claimed that the public interest exception was necessary because Australia lacked specific constitutional protections of freedom of expression, although no evidence is provided to support a direct link between the lack of a constitutional free speech protection in Australia and the inclusion of the public interest exception in the legislation. Except for very general comments in parliamentary debate, very little concrete evidence exists that the specific terms or breadth of the exemptions were discussed in detail before the racial anti-vilification legislation was enacted in NSW. [references omitted, my bold]

How is this for evidence of a direct link: if there were a constitutional free speech protection, having the public interest exception built into the racial vilification provisions would be completely redundant as it would just be replicating protections that already exist. The US does not need to include free speech protections in any of its legislation because they are already covered by the first amendment.

But the paper is really about hate speech – Gelber thinks a theory by Jurgen Habermas is all that we need in determining whether a statement should be proscribed hate speech. The statement she chooses as the sole test example?

The incident concerns a woman who was the target of the following comments from occupants of another vehicle at a service station: “You black slut”, “You’re nothing but a coon”, “I’ve shot worse coons than you”.

Using Habermas’ theory, Gelber spends 7.5 pages determining that this statement is, in fact, discriminatory. I hope that comes as a shock to you, because I was certainly blown-away by the revelation.

To summarise her application of the theory:

  1. On one level, it is objectively determinable, and probably untrue, that the woman was, in fact, a ‘slut’ or ‘nothing but a coon’ (short for ‘racoon’) and whether speaker had actually shot any ‘coons’ before.
  2. The statement reinforced the idea that the black woman was inferior because she was black and a woman.
  3. We can’t really know why the person made the statement, but they are probably a racist.

I’m glad we sorted that one out. To me, that statement is pretty clear-cut racial vilification. In fact, it would probably be harassment even if there were no racial undertones. Maybe Gelber could have chosen something a little more ambiguous to test her theory on?

How, for instance, would this test apply to very black Aboriginal activist Bess Price saying to a very European-looking Aboriginal man, “Look, I didn’t know you were a blackfella as well because I’m sitting here and you look totally like a whitefella to me”? Or for Chris Graham, the Founder of the National Indigenous Times and another pale-skinned Aboriginal, calling Price a ‘grub’ in response?

A little more difficult, no? Let’s apply the formula to the first:

  1. Price probably did assume that the man was not Aboriginal.
  2. She was affirming a norm that does exist where appearing black is linked with Aboriginality. Society has a lot of difficulty in determining if this is valid, but it is hard to tell someone who looks like Price that it is not. This criterion is a little vague.
  3. Both Price and the man knew exactly what Price wanted to say.

And the second:

  1. Price is not, in fact, a ‘grub’.
  2. Well, Graham is technically Aboriginal, however there does seem to be something racist in a white-skinned man calling a black-skinned woman a ‘grub’.
  3. His intent was pretty clear: he found it offensive that his Aboriginal appearance was being called into question by Price.

Should this be proscribed conduct? Not so sure now, are we?

But the worst part really is the ‘policy’ that Gelber puts forward at the end:

Might there be mechanisms other than apologies, retraction, fines and workplace-based educational programs that might respond more effectively to hate speech?

One alternative is to provide a hate speech policy which allows for the generation of speech which aims to counter the claims of the hate speakers. This means providing an assisted response to those who would seek to contradict and counter the effects of hate-speech-acts. This means that victims and victim groups would be empowered to respond to, and to seek to contradict, the impact of and the discrimination embodied in, the utterance.

She then spends a while explaining the benefits of this idea. The problem is, this is not really a ‘policy’ – it is a goal.

Apologies, retraction, fines and workplace-based educational programs are policies – they are things that can be implemented in the event that the Act is breached. Allowing the oppressed person to counter the claims of the speaker is not a policy. A policy could be, say, forcing the abuser to sit down with the abused and have at it – although I would question the effectiveness of this.

What I do know is that these vague alternatives have not convinced me that we can get rid of free speech protections in our racial vilification laws.

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  1. #1 by jaguarpython on September 8, 2012 - 10:17 am

    Fantastic post.

    I personally think hate speech should be an offence, however if that’s the case then what hate speech actually is needs to be very clearly defined. Freedom of speech is necessary to protect the free expression of dissenting ideas. Often that expression can be passionate or about topics that a governing body doesn’t like.

    Not defining what “hate speech” potentially leads to gross abuses of power. As does being unable to contest the definition of “hate speech” in court.

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