The politics of hateby Sally Blundell
The racially motivated desecration of Jewish graves and this year's attacks on Muslim mosques in Auckland have shocked New Zealanders. Now, race riots have rocked Australia, renewing calls to toughen our hate-speech laws.
It was the rallying cry of support for the riots that turned a south Sydney suburb into a scene from Lord of the Flies, with a 5000-strong mob attacking anyone of Middle Eastern appearance, chanting "no more Lebs", "Leb-free zone" and, incredulously, "we're sons of the ANZACs".
Pitiful and small-minded, or a rising force that uses freedom of speech - and the instant call to arms via social media - to incite hatred and violence?
Anyone who has survived a primary school playground knows that words can wound, humiliate, frustrate, devastate. A strip of sand in Sydney has shown us the uglier, more grown-up effects of such vitriol.
But are words weapons of crime?
Four years ago, the government considered amending the Films, Videos and Publications Classification Act to include material that discriminated against certain groups of people. When this was deemed to be the wrong place for such legislation, the administration committee launched an inquiry into whether new or existing laws should cover the prohibition or restraint of "hate speech" (words that are "threatening, abusive or insulting" or that are "likely to excite hostility against or bring into contempt any group of persons"). The committee is now preparing for the next batch of submissions, when hearings restart in February, to decide whether any harm done by "fighting words" or the vilification of certain groups justifies further limitations on our right to freedom of expression.
Have Sydney's flashmobs with mobiles - and the immediate signs of support in Wellington - made a stronger argument for such legislation?
"We're aware that there's always going to be volatility in relation to freedom of expression," says Human Rights Commissioner Dr Judy McGregor. "But these are isolated incidents. We shouldn't be using a sledgehammer to crack a walnut, and responses to combustive episodes don't necessarily make good legislation. You need to have something that symbolically and practically says it's wrong, and we have that - there are pieces of legislation that send a powerful message to people that there's a line that shouldn't be crossed."
The New Zealand Bill of Rights enshrines the right to "receive and impart information and opinion of any kind and in any form". We are also party to inter-national conventions that protect freedom of expression, conscience and religion and the right to hold opinions without interference. But those same convenants note that "certain restrictions may be necessary and may be provided by law, and that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".
Under New Zealand's Human Rights Act, it is illegal to use written or spoken language that expresses hostility against or brings into contempt or ridicule anyone on the grounds of colour, race, or ethnic or national origins. In 1993, anti-discrimination laws were extended to include disability, age, employment status, family status, political opinion and sexual orientation.
Clearly the discussion isn't about whether we should have free speech. It's about where that line between freedom of speech and the right to freedom from discrimination and hateful opinion should be drawn. Underpinning one side of this debate is the notion that acts of violence against racial groups can be traced back to social attitudes and the kind of speech that promotes negative stereotypes and attitudes.
"Speech does make things happen," says Derek Wallace, writing and rhetoric lecturer at Victoria University. "Speech has actual effects, like humiliation, harassment, intimidation and social alienation. You can significantly subordinate people by speech. Therefore it is logical that you need to control that, just as you control offending physical acts."
The classic precedent for this, says Human Rights Commissioner Warren Lindberg, is Nazi Germany.
"Anti-semitism didn't come out of thin air. There was a climate of anti-semitism that survived in Europe for centuries, so there was a kind of passive acceptance of extremism. The same with homosexual people. There's a pattern of low-level abuse and harassment that, if it's accepted and tolerated, can lead to extremes."
Former head of the New Zealand Jewish Council David Zwartz says it is this often insidious build-up of hate speech that leads to hate action.
"Even though speech in itself might not advocate violence, it changes the level of acceptance in the community towards minority groups. When those attitudes are spread around and absorbed by those inclined towards violence, one thing leads to another."
But, as media lawyer and law lecturer at the University of Canterbury Ursula Cheer says, we will never know for sure if offensive speech leads to hate crime.
"Opportunist statements might blame crime on that sort of material, and there are always those unfortunates influenced by that sort of thing. But does that mean we treat everyone like that?"
In Sydney, complaints are piling up against high-rating talkback radio host Alan Jones, who before the riots read out the provocative text messages urging "every Aussie in the Shire [to] get down to North Cronulla to support the Leb and wog-bashing day ..." (He does not appear to have given equal airtime to revenge texts calling on those of Middle Eastern descent to "Wake up, wake up, oh lion of Lebanon. Retaliate, take action.")
Yet, Cheer is adamant: unfettered speech leads to debate. From many voices, she says, a kind of rational middle ground will emerge that will expose extremist views for what they are.
And giving voice to all points of view, no matter how abhorrent, does at least allow for rebuttal.
Which sounds fine in theory, says Zwartz, "but it's pretty hard to carry out in practice because your platform for rebuttal is not guaranteed. The media latch onto the controversial and dramatic allegation or accusation rather than the rebuttal. People remember the first statement, not the correction."
McGregor agrees that more work needs to go into ensuring redress by minority groups through the media, but many examples of prejudice do not fall into the category of blatant, extreme statement. Innuendo, ridicule, even neglect have as much potential to perpetuate negative stereotypes as the grossest claims made on anti-gay US websites or Wellington's own White Crusaders posters. The legal mechanisms needed to stop these forms of expression would either stifle the media, general debate and public commentary altogether, or founder and fall into disuse.
Complaints of causing racial disharmony rarely lead to prosecution. Figures from the Human Rights Commission show that, although allegations of inciting or exciting racial disharmony under Sections 61 and 131 of the Human Rights Act trebled from 70 in 2002 to 210 in 2003 (the year of the "cheeky darkie" and other high-profile statements), then went down again to 78 in 2005, the commission did not need to take any of these allegations through the formal complaints process, offering instead other solutions such as mediation.
But, according to Lindberg, such legislation has a symbolic effect.
"There are people who are not accepted for who they are, and it's hard for people who are not a minority to understand this. Legislation sends a signal that there is a limit. Of course people would prefer this to be done through social consensus, but there has to be that legal backstop to protect vulnerable people both before the event - that is the function of censorship - and to provide some rights for people after the event - this is where the Broadcasting Standards Authority [BSA], the Press Council and the Human Rights Act come in. The decisions that come out of the BSA and the Human Rights Tribunal set a benchmark on what's acceptable. Over time, a social consensus emerges when people overstep the mark. So, legislation is part of that education process. It helps create a framework that doesn't stop people from thinking and speaking freely, but which protects fundamental human dignity."
Internationally, hate speech is a well-worn legislative road. Holocaust deniers have long been the target of anti-racism speech laws in Europe. Canada protects free speech in its Bills of Rights, but has statutorily enacted a criminal offence of "hate propaganda", which prohibits the advocacy of genocide and public incitement of hatred based on colour, race, religion or ethnic origin. Both Canada and Sweden have recently added sexual orientation to hate-speech laws - a move fiercely opposed by Christian groups who want to express their views on homo-sexuality. Although the UK protects freedom of expression in its Human Rights Act, hate-speech provisions in the Public Order Act only require evidence that the speech under question could produce the offence, not that it actually did.
Australia has anti-vilification legislation and hate-speech regulations, but these include significant exemptions for fair reporting, academic research, artistic work and matters of public debate. A recent furore in Victoria, however, erupted over a legal decision that Christian group Catch the Fire must apologise for vilifying Muslims as terrorists wanting to take over Australia. The three-year case won worldwide attention, with free-speech advocates warning of Christian martyrs being born out of legal convictions and supporters of vilification legislation claiming that laws can and do change behaviour. Since the Cronulla riots, there have been calls to amend state legislation to stop the spread of text and email messages that call for violence and vilification against ethnic and religious groups.
Earlier this month, the Australian Parliament rushed through a new Anti-Terrorism Bill that includes penalties for "urging disaffection" with the government. The uproar was instant, with full-page newspaper advertisements accusing the government of putting Australians' "most basic civil liberties under threat". The ramifications of the bill, the Law Council ads say, "have the potential to be as terrifying as terrorism itself".
Here, the government is urging caution, with administration committee chair Shane Ardern saying that he believed hate-speech legislation would create more problems than it solved.
Last year, then Minister of Justice Phil Goff argued that the expression of opinion, even hateful opinion, played a part in any democracy, and "it would be naive in the extreme to think that by making hate speech unlawful you are changing people's opinions".
Gay rights advocate Calum Bennachie agrees that new legislation is not necessarily the answer. Categories such as sexual orientation, gender identity and religion, he says, could simply be added to existing legislation on inciting disharmony and harassment.
But, assuming that free speech has to have some limitations, debate will continue over where freedom of expression ends and actively inciting hostility begins.
Wallace: "If there is to be a distinction between irrational hate speech and rational commentary, it must be drawn on the line between changeable characteristics and the unchangeable. If there's hate speech that's directed to something someone can't change, like the colour of their skin, their gender, their sexual orientation, I would support the availability of legislation. But in the realm of ideas, it's open slather."
"Religion is an idea. If I was to say religion was protected, then I couldn't oppose as strongly as I would hope practices such as female circumcision when they are given religious justification."
Limitations of speech can be hijacked. Restraints meant to protect one group can gag legitimate comment by another. Positive discrimination can backfire. Legislation, says Christchurch human rights advocate David Small, could actually do more harm than good. And the restraint of what could be described as a very private form of communication, the mobile text, once used as an instant party tip-off, will certainly test the definition of public incitement.
Small and Cheer argue that more speech is required, not less. That abusive or intolerant speech must be countered with more debate, more argument, more counter-argument, more of those same words that hurt, provoke, challenge, educate, inspire.
Just days before Christmas, new words in Australia signified a nervous calm. When a couple of weeks ago the sand at Cronulla read "100% Aussie Pride", now a large sign simply says "Peace".
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