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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Sunday, April 12, 2009

Hate speech and the ICCPR - why we ought to be worried

Sometimes I wonder whether I'm a bit too paranoid about prohibitions on religious hate speech. It might be said to me, "I support your opposition to broad bans on an ill-defined category of defamation of religion, but there's nothing wrong with the carefully-worded proscription of hate speech in Article 20 of the International Covenant on Civil and Political Rights. Can't we use that as a standard?"

There's some force in this objection. On a sensible interpretation, Article 20 might be relatively innocuous, even beneficial. This provision states: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

But let's look at that closely. First, it is requiring those states that have signed up to the ICCPR to prohibit something. Well what, exactly? Answer: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". So, what's so bad about that?

Actually, quite a lot, but notice, first, that what is prohibited is "advocacy of ... hatred". Of course, "hatred" is a very strong word, and the speech concerned must not merely be motivated by hatred; it must actually advocate hatred. The UN convention doesn't say "contempt" or "scorn" or "amusement" or "laughter" or even "disgust". The speech must actually (1) advocate hatred (nothing less), and also (2) incite others to "discrimination, hostility or violence". You'd think that would be a difficult test to pass. The strongest language used by Richard Dawkins or Christopher Hitchens or Michel Onfray or even (arguably) Geert Wilders does not advocate that we hate anybody. Not if the word "hatred" is taken literally. If you are advocating hatred, you (Person A) are advocating to Persons B1, B2, etc., that they actually feel malice towards Person C. Malice in the sense of extreme, destructive ill-will. That's very narrow drafting, you might think. How many people in civilised societies really advocate hatred?

Hang on, though.

The wording yields several combinations of elements (nine, in fact) that are supposed to be prohibited. For example, "advocacy of racial ... hatred that constitutes incitement to ... violence". I have no problem with banning that: incitements to violence are not something we want in modern societies. Another example would be "advocacy of national ... hatred that constitutes incitement to discrimination". Okay, so I might tell my neighbour that she should hate Norwegians and make life difficult for them, specifically, if they want to buy stuff from her clothes shop. That's not very nice of me. What I'm inciting her to do is probably against the law in whatever jurisdiction we happen to live in (though not the criminal law in most jurisdictions). If my efforts against Norwegians are banned, is it such a huge imposition on my free speech? As it happens, I'm not sure about this one, and I don't want to get bogged down in arguing about the pros and cons. My point for the moment is just that the various things that are supposed to be prohibited are not all the same.

The truly worrying combination of elements, the one I can't live with, is this: "advocacy of ... religious hatred that constitutes incitement to ... hostility". That has enormous potential to restrict freedom of speech. Since "hostility" and "violence" are listed separately, it seems clear that "hostility" need not go as far as involving violence. If I read a harsh critique of Scientology, might I not be provoked to feel a degree of "hostility" to Scientology and to individual Scientologists? What if I see a video in which someone angrily denounces the views of the Catholic Church hierarchy on condom use? Might I not be provoked to feel hostility to the Church and to members of its hierarchy? Might that not be the intention? Might it not even be in the public interest in many cases for there to be such incitements to feelings of hostility, as opposed to any act of actual discrimination or violence? Robust public debate assumes that there will be speech that incites various degrees of hostility to various people. Note that no one worries at all if a politician attempts to incite hostility towards opponents or their ideologies or organisations. Why should it be any different when we're dealing with religious ideas rather than political ones?

But the word "hatred" might save me if I am severely critical of, say, the local Catholic cardinal in a way that incites hostility towards him. Much as I might want my listeners to feel some degree of hostility, I am not advocating hatred of the cardinal. Note that the prohibition called for is against speech that (1) advocates hatred and (2) incites hostility. My speech might fall under (2), but it can't be banned unless it also falls under (1). I can incite hostility against the cardinal as much as I want, as long as I don't do it using speech that advocates "hatred" of him. Surely I'm safe.

Not so fast. Yes, "hatred" is a very strong word, but it is also open to interpretation. It is used in many contexts where literal hatred - the kind of intense ill-will suggested by the word - is not at issue. "I hate the Cats," says someone whose football team has a losing record against Geelong (overseas readers can think of their own sports examples).

In the context of debate about religion, the word "hatred" and its cognates are thrown around very freely, usually by religionists who can't understand how criticism of their views, organisations, doctrines, and so on, can possibly be motivated by anything short of hatred. Consider this article by A.N. Wilson, headed "Religion of hatred: Why we should no longer be cowed by the chattering classes ruling Britain who sneer at Christianity." What is being suggested here is that atheism or humanism is a "religion of hatred". Forget the foolishness of calling the views of, say, Polly Toynbee, whom Wilson attacks spitefully, "a religion". The point is that it is called a religion "of hatred".

"Very well," you might say, "but A.N. Wilson may not have given his piece this title. It could be the work of a sub-editor. Don't put too much weight on it."

Fine (maybe), except that the hypothetical sub-editor found it reasonable, in contemporary circumstances, to use the word "hatred" in this context. And note Wilson's own language in the body of the article: "The vast majority of media pundits and intelligentsia in Britain are unbelievers, many of them quite fervent in their hatred of religion itself." As Wilson goes on, accusing Toynbee, Richard Dawkins, and others of fervour, fanaticism, etc., etc., the picture emerges that he really does think his opponents are motivated by, and are advocating, hatred of some kind.

Wilson stops short of accusing his "smug", "sneering", "fanatical", "puerile", "foul-mouthed", and "tieless" (!) opponents of advocating hatred of specific individuals, rather than religion itself, but this is a fine line, and the tone of the article suggests that its author is, in any event, pretty close to crossing it.

This is by no means the first time that I've seen apologists for religion freely throwing around words such as "hate" and "hatred", suggesting that their opponents are hate-filled and promulgating hate. You might like to look out for your own examples. It seems that it is acceptable, in contemporary societies, to write and talk like this. I'm not suggesting that such language be forbidden by law, but I do think it should be seen as patently ridiculous. Should be seen that way - but evidently is not.

That's worrying. If it comes to be accepted that the sorts of critiques of religion that we see from Dawkins, Toynbee, Christopher Hitchens, and all the contributors to 50 Voices of Disbelief: Why We Are Atheists, are indulging in some kind of hate speech, the game is up. If it's accepted that we are all (1) advocating religious hatred and (2) thereby inciting hostility, then what we're doing should be banned by any country that wishes to meet its obligations under the ICCPR.

That being so, the freedom to publish such critiques hangs on either (1) the unwillingness of Western nations to accept their full ICCPR obligations or (2) the astuteness of judges if these critiques are ever challenged in court. Fortunately, even those Western jurisdictions that have religious vilification laws have generally been quite careful to provide defences and restrictions that offer some protection of free speech. Astute judges might well be unwilling to accept the language of "hatred" that is flung about so freely and recklessly by religionists, or might insist that the "hatred" be hatred of actual adherents, not of doctrines or practices or organisations. At the moment, it would take a maverick judge or tribunal member to find that (the right kind of) hatred is advocated by, say, Richard Dawkins.

These, however, are not bulwarks that we can totally trust. Yes, in current circumstances it's most unlikely that a Western court will find that Dawkins or Toynbee or Hitchens, or Udo Schuklenk, or Russell Blackford, or any of our Voices of Disbelief collaborators, has breached a law against religious hate speech. But the language of the ICCPR is sufficiently fuzzy to cause great concern. Public perceptions and public policy would not have to change all that much for Article 20, with its existing wording and no supplementary material about "defamation of religion", to become a powerful weapon in the hands of religionists who want to suppress their opponents' speech. The convention, in its current form, is already a weapon, if it's combined with the acceptance of hyperbolic language that imputes "hate".

We are not being paranoid if we worry about the existing language of Article 20, as I do in my submission to the National Human Rights Consultation Committee, here in Australia (this is now also on the Committee's site). In Western countries, the danger is not immediate - but the potential exists. An entire post could be written about how the Article is open to abuse in more theocratic nations, such as those of the Middle East.

This is yet another area where continued social and political struggle is required to ensure that our fundamental liberties are protected.


Richard Wein said...

How can advocacy of hatred not constitute incitement to hostility? If it can't, then the qualification ("that constitutes incitement to discrimination, hostility or violence") adds nothing to the basic criterion ("advocacy of national, racial or religious hatred"), and only confuses the issue.

Russell Blackford said...

I agree. The idea of advocating hatred seems to be stronger than, and perhaps to fall within, incitement to hostility. If mere "hostility" is included, the test could be simply whether hatred is being advocated ... and the rest is redundant.

The drafting is odd and I've always found it a bit baffling as to why it's worded in just that way. I suppose it would be worth researching the history of how those particular words came to be agreed.

Steven Carr said...

Why don't we simply ban hatred?

It is perfectly legal to hate somebody.

So why should it be unlawful to incite people to not commit a criminal act?

Blake Stacey said...

Hmmm: I may have to make "tieless atheist" a standard part of my vocabulary.

Russell Blackford said...

Should I wear a tie when I go to the (mouthful) community consultation roundtable tomorrow? Part of me would quite like to dress up for the fun of it. Another part says, no - go as my usual godless and tieless self. I may have to flip a coin in the morning.