The following is a tweet that I made today on the platform formerly known as Twitter. I'm republishing it here where it might get some more views, since I think it makes an important point...
One thing that I have to talk about from yesterday is this issue of hate speech that's come up for debate [in Australia]. The government made an excuse that it has been inactive in moving on hate speech by Muslim clerics, etc., because until now the political argument in Australia was about cutting back existing hate speech and similar laws rather than extending them. There was even an implication, I think, that people criticizing the government were being hypocrites.
Now, there's some truth to the claim that many of us have wanted to cut back on laws restricting speech. In particular, many of us have wanted to repeal s.18C of the Racial Discrimination Act, or at least to replace it with a narrowly framed provision based on vilification rather than on giving offence. But let's think about this. First, many of today's debates have some connection with race, nationality, etc., and especially with the role of various religions in society and the world (and religion can in some cases be connected back to race or else be said to be "racialized"). The bottom line is that a court that's determined to read a provision like s.18C expansively has enormous scope to do so: these days, a vast range of political speech has at least some connection with race, etc. Even if some of us consider the connection to be tenuous on a particular occasion, the Federal Court might well not. Second, it's the nature of political debate in the public sphere that it stirs up passions or even anger. It would be nice if we could all keep cool heads and address each other with maximum civility even when we disagree strongly, but that's not a realistic expectation. The upshot is that there will be a lot of political language that's intemperate. Put this together with the first point, and there's enormous scope for all sorts of intemperate language to have at least some connection with race, etc. You can see where this is leading. You'd think the Federal Court might be aware of the problem and might take a very narrow view of what is offensive in the legal sense. It might, therefore, filter out merely angry or intemperate comments that everyone has to put up with in the cut and thrust of political debate. Indeed, in theory the court does apply a high threshold for offence in the legal sense. But in practice there is little record (if any) of cases being decided on the basis that the language used was intemperate but not legally offensive. Perhaps some of my friends who are lawyers or legal scholars can identify a few such cases, but none immediately come to my mind. So, we have enormous scope for the Federal Court to find breaches of s.18C merely because someone said something intemperate that might have caused someone else to take offence - and the topic had some tenuous connection with race, etc. To take this point a step further, even language that is not intemperate can offend. If I point out (using civil language) that historically Islam has been a religion of war and conquest, not a religion of peace, that might well offend a lot of Muslims. In the famous Giniewski case in France, all Paul Giniewski did was point out that Christianity had an inherent tendency toward antisemitism with its doctrine of the supersession of the old dispensation (God's covenant with Israel) by the new (Christ's sacrificial atonement) ... and so it laid a foundation for Jew hatred that led to the Holocaust. He was completely correct, but he was dragged through the French courts and lost his case all the way to the highest court in the country. Giniewski finally won in the European Court of Human Rights. This was a rare case where the Strasbourg Court actually did something useful, for once, as it makes all sorts of bad decisions where it grants member states of the Council of Europe a "margin of appreciation" and allows them to get away with all sorts of authoritarian shit. Meanwhile, Giniewski was put through this process over perfectly legitimate remarks that pissed off Catholic interest groups. In conclusion at this point, a provision like s.18C in the hands of a court that's inclined to read it expansively has enormous scope to punish legitimate political speech. Third, section 18C is supposedly tempered by s.18D, which allows a defence. But s.18D is fairly much a dead letter, or at least it's useless if the Federal Court is out of sympathy with whoever is being sued. It has been interpreted in such a way that it's open to endless manipulation by the court. If a judge takes the subjective view that your speech was not in the public interest, was not reasonable, was too one-sided, etc., you're stuffed. Your defence will fail. There's essentially unlimited scope for judges to test the legitimacy of your speech against their own political views. A statute restricting speech should not be open to being used in that way. The bottom line is that s.18C is a terrible law that should not exist in its current form. Okay, but note that the fundamental point about why it's so terrible is that it (in effect) prohibits speech that might offend somebody and which a Federal Court judge might not like. That should not be the relevant test. There's a world of difference between my saying something that offends you and my telling a third person that they should murder you. I don't need to tell the third person to murder you in so many words - there are many ways to make my meaning clear. If I go around saying that the members of some group are snakes and cockroaches, I don't need to add the words "and they therefore should be exterminated" - the implication is clear enough. So, we have two kinds of speech - speech that offends somebody, and speech that calls for others to murder or otherwise seriously harm somebody. It's only the latter that should be considered "hate speech". Unfortunately, however, the term "hate speech" is used so widely and so loosely in our society that it has come to mean all sorts of speech, including speech that merely sets back (if people take any note of it) the political agenda of some group. Thus, the term "hate speech" is thrown around at the drop of a hat to stigmatize and attempt to suppress all sorts of speech that might be entirely legitimate (even if not optimal in its tone) in a liberal democratic society. All of this is consistent with the possibility that, even as a lot of legitimate speech is being chilled, a lot of genuinely hateful speech that calls for violence against a group such as the Jews might be spewed in settings where it will be taken to heart and possibly acted upon. While some of us walk on eggshells in what we say about important issues (just in case we might offend somebody) there can be others in the same society who are getting away with truly dangerous speech that potentially inflames murderous violence. I need to look further into the new hate speech laws, and I don't currently have a view as to whether I should support them. But it's quite consistent to support laws that criminalize incitement to violence and even murder while also opposing endlessly manipulable laws that can get us into trouble with the courts merely for saying something that might cause offence. Pretending there is no distinction to be made here is dishonest.