An important distinction in the debate over hate speech, jihadism, and s.18C of the Racial Discrimination Act

The following is a tweet that I made today on the platform formerly known as Twitter. I'm republishing it here (in slightly edited form) where it might get some more views. I think it makes an important point...

One thing that I have to talk about from yesterday is the issue of hate speech that's come up for debate in Australia. The government recently made an excuse that it has been inactive in moving on hate speech by Muslim clerics, etc., because until now the political argument 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.

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 sufficiently 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 categories such as race. 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 categories such as race. You can see where this is leading. You might think that the Federal Court would be aware of the problem and would react by taking a very narrow view of what is offensive in the legal sense. In that case, it might filter out the merely angry or intemperate comments that everyone has to put up with during 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 somebody else to take offence - and the topic had at least some tenuous connection with race, nationality, and related categories. To take this point a step further, even language that is not intemperate can often offend. If I point out (using civil, temperate 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 (it makes all sorts of bad decisions where it grants member states of the Council of Europe a "margin of appreciation" and hence allows them to get away with all sorts of authoritarian actions). Meanwhile, Giniewski was put through this process over legitimate remarks that offended Catholic interest groups. In conclusion at this point, a provision like s.18C, placed in the hands of a court that's inclined to read it expansively, has enormous scope for punishing legitimate political and other 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 to achieve what the court considers a socially fair outcome. If a judge takes the subjective view that your speech was not in the public interest, was not reasonable, was too one-sided, etc., your defence will fail, as is usually the case whenever s.18D is relied on. There's essentially unlimited scope for judges to test the legitimacy of your speech against their own political views. No statute restricting speech should 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. 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 regard unsympathetically. 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. Note that 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, at this point 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 very freely in order 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 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 other individuals 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. Perhaps I shouldn't. 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.

My contribution to a new piece at The Conversation

Over at The Conversation, five people (including me) respond to the question of whether democracy is the worst system of government except for all the others. Check out the whole thing.

My own response discusses the big advantage of democracy: that you can throw out an unpopular government peacefully. But I also emphasize the inherent fragility of democracy:

The government of the day is expected to take a psychologically unnatural attitude to its opponents.

It has to maintain, firstly, that it is objectively better at governing than its opponents, whom it is justified in criticising without mercy. But then it must accept that, if it should lose an election, it will graciously hand over control of the treasury, the military, and all the agencies and powers of the state to those same opponents.

I suspect that the conditions in which this attitude seems rational and commendable are very rare, and that they are all too easy to erode. We ought to give them more thought if we really care about preserving democracy. 

Article in The Philosophers' Magazine: An Air of Unreality

Back in October, I published this article in The Philosophers' Magazine. It begins as follows:

On 7 October 2023, the terrorist organization Hamas and allied groups attacked multiple Israeli communities, including a music festival held near the kibbutz Re’im in the north-western Negev desert. The terrorists murdered almost 1,200 people and kidnapped another 250 people to serve as hostages. There have been credible reports of torture, rape, and other forms of cruelty inflicted during these events, which I’ll refer to as the October 7 massacres.

These attacks on Israel attracted widespread international condemnation. More surprisingly, however, many people excused them or even glorified the perpetrators. The excuses and glorification came not only from Islamists in the Middle East but from secular opponents of Israel living in Western democracies. It became clear that many politically focused individuals in the West are not merely critical of the Jewish state and certain of its actions and policies; they regard Israel as a white colonial enclave that lacks any legitimacy, should not have been established in the 1940s, and ought to be destroyed.

Over the last two years, such criticisms have been amplified many times over, as we’ve followed events in a desperate urban war carried out on terms dictated by Hamas. Like many such organizations, Hamas benefits by maximizing the number of deaths and injuries within its own civilian population. These can be leveraged for a global information war, and indeed Hamas has achieved remarkable successes at that level of its struggle against Israel. This is a well-known approach to asymmetrical warfare. It has often been used in the past to gain international support and to triumph politically against militarily stronger enemies.

You'll want to read the entire article if you're troubled by current events in Australia and elsewhere involving antisemitism and jihadism. I don't attempt to excuse Israel of all wrongdoing, but I argue forthrightly - and I'll repeat here - that Israel is not committing genocide and that the genocide narrative is propaganda from a terrorist organization seeking Israel's destruction. It is all too easily believed by many Westerners who come to the debate already in the grip of an anti-Israel and anti-Western ideology. I conclude:

The false Gazan genocide narrative sidelines the challenges of fighting a terrorist organization embedded within a civilian population. It inflames global tensions, fosters antisemitism, and distracts from efforts to understand the genuine rights and wrongs of the war.

There is no such thing as Islamophobia ...

I'm reposting the following comment that I made earlier today on my Twitter (now X) account...

Your occasional reminder that there is no such thing as Islamophobia. A phobia is an irrational and pathological fear, but a certain level of fear of Islam is perfectly rational. Islam has always been a religion of war and conquest, and it has always sought to establish its own political order - subordinating everyone to its authority. This has been the case ever since the seventh century. It is fundamental to the religion.

And before someone starts telling me about how bad Christianity is, let me assure you that I am well aware that the logic of Christianity historically caused it to be a more persecutorial religion than Islam ever was. It's perfectly rational to feel a certain fear of Christianity as well. All religions have their faults, and it is never irrational to be afraid of them to some appropriately calibrated extent. Christianity is certainly not an exception. In some ways it has been the worst religion of them all. But to some extent it was tamed by reaction against the catastrophic wars of religion in the 16th and 17th centuries, and then by the 18-century Enlightenment. I have a lot to say about the record of Christianity and Islam, among other religions, in my most recent book, How We Became Post-Liberal. The bottom line is that we should not be persecuting people for their religious beliefs and practices. We should practice religious toleration, and in that sense, people should have religious freedom. No one should have to fear persecutions, pogroms, inquisitions, witch hunts, etc. But it is absolutely fine, and indeed necessary, to study religions and the dangers that they bring to our secular liberal societies - and to be wary of them to the different levels that are appropriate to our historical circumstances. It's also worth noting that this appropriate wariness of various religions has nothing to do with racism. It is not a suggestion that people are somehow an inferior biological sub-species because they adhere to certain religious beliefs and practices. It's a rational recognition that religions motivate people and that the motivation is not always good even though we like to sentimentalize religions and pretend that they are always forces for kindness and toleration.

As a final point, it's difficult to talk about these topics openly and honestly in Australia without the risk of being accused of "hate speech", with the possibility of being dragged into court proceedings that will destroy our life savings (or worse). But we need to be able to talk about these things - so one of the first actions that I recommend we take in Australia is to repeal section 18C of the Racial Discrimination Act. We need to be allowed to talk! We can still have laws against genuine hate speech, narrowly understood, such as preaching that Jews should be murdered. If we need to strengthen some laws to crack down on that kind of speech, so be it, though we need to be very careful. We have to tread cautiously and consider the downside and possible abuses whenever we restrict speech.

But in any event, we currently have a law that requires that we can't say anything that even offends people if it can be connected, however tenuously or imaginatively, with race, ethnicity, etc. Although the concept of offence is supposed to be narrow, that is not how it is being treated in practice. The courts have failed us by interpreting s.18C expansively and interpreting its defences in s.18D so narrowly that s.18D is almost a dead letter. The existence of such a provision, together with the failure of the Federal Court to interpret it in a way that protects free speech, chills important conversations on urgent social issues. Repeal of section 18C should be a political priority.