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Racial vilification: why defenders of section 18C fail

The defence of section 18C of the Racial Discrimination Act falters on the key issue of subjectivity.

There has been too much heat and not enough light on these matters,” Race Discrimination Commissioner Tim Soutphommasane said about the debate over sections 18C and 18D of the Racial Discimination Act. It’s one of the few statements about the subject that would draw universal agreement.

Soutphommasane made the comment near the start of a long discussion of the issue in a lecture at the start of March. You’d think a 8000-word piece by a defender of 18C would have reform advocates licking their lips in anticipation of the intellectual challenge of rebutting it. No such luck. As if to prove Soutphommasane’s point, The Australian’s in-house pseud, Nick Cater, this week dismissed Soutphommasane’s detailed discussion as “impenetrable”, “nit-picking” and offering a “laboured argument irrelevant to the present debate”. That was because, Cater suggested, the real issue was that “liberty is not just a matter for philosophical discussion but something one feels in one’s gut”.

While dismissing rational argument in favour of instinct is a time-honoured line of rhetoric — hell, it was good enough for Rousseau — Cater’s refusal to engage with Soutphommasane, preferring instead to reject his argument as “impenetrable” (it’s long, Nick, but it ain’t Sein und Zeit), is unfortunate, because it pays to take heed of Soutphommasane’s arguments and see where he goes wrong in defending the retention of 18C in its current form.

And it’s not that Soutphommasane is entirely innocent of producing heat himself. He builds a straw man of RDA critics and gives it a thorough flogging. Critics are “Panglossian free speech absolutists”, believers in “homeopathic machismo”, a mediaeval “thick-skin brigade” that “believes racial vilification is at best an ersatz racism that troubles only effeminate citizens concerned with inconsequential feelings”. And just for something to be going on with, Soutphommasane invokes a description of American liberal jurist Oliver Wendell Holmes jnr, who fought in the American Civil War, as a “brutal necessitarian”.

Soutphommasane’s stereotyping is amusing, if inaccurate. Yes, there’s a certain HTFU tone to some free speech polemic, but I’m a bit of a free speech absolutist myself, and I haven’t seen too many Panglossians at the meetings; maybe I’m an outlier, but my views on free speech tend to reflect a pessimistic, not an optimistic, view of human nature. Nor, I suspect, do too many of us think there’s anything good or bracing about the airing of racism, which like many other things represents the dark side of free speech, the abuse we have to put up with to get the benefits of it.

But Soutphommasane’s critical point is that racial vilification isn’t ersatz racism of any kind but that public words that “offend, insult, humiliate or intimidate”, as per 18C, are damaging to victims, just as actual incitement to racial violence is damaging to victims. Vilification thus falls into the category of speech that (virtually) all free speech advocates agree should be regulated, that which leads to harm to others. Oliver Wendell Holmes coined the famous reference to falsely shouting “fire” in a crowded theatre i.e. speech that is intended to cause harm. Soutphommasane’s argument, backed, he says, by evidence, is in essence that offending, insulting, humiliating or intimidating can cause psychological damage and economic harm in the same way the irresponsible theatre patron causes physical and economic harm. The debate thus isn’t about mere hurt feelings, but about the deliberate infliction of harm, albeit harm of a psychological rather than physical kind, but nonetheless demonstrable.

Where Soutphommasane’s argument is on stronger ground is on ‘intimidation’ alone.”

Moreover, vilification is a curtailment of the victim’s freedom. Soutphommasane says:

If we do not always make the connection between racism and its curtailment of freedom, it is because we are more likely to regard the harm as one involving dignity. Racism reduces the standing of another to that of a second-class citizen. But dignity is also connected to freedom; freedom, after all, is never something that we enjoy in a vacuum. Where there is an injury to dignity, there is an impact as well on the capacity to exercise freedom. In the case of racism, the experience undermines the assurance of security to which every member of a good society is entitled — the sense of confidence that everyone will be treated fairly and justly, and that everyone can walk down the street and conduct their business, without fear of abuse or assault.”

Arguing vilification causes damage to others would be a powerful argument for retaining the existing law. But Soutphommasane is unable to sustain it. “[T]he section does not involve a subjective test of hurt feelings or injured sensibilities,” he says. But even though he has successfully shifted the debate from taking offence to psychological damage, the core problem of offence and hurt feelings remains their subjectivity.

Different people will react to vilification differently. Some might feel their employment prospects have been diminished and their freedoms curtailed. Others might regard the frothings of a bigot as unworthy of a second thought. Still others might find motivation in the taunts of a sick mind. Soutphommasane’s evidence is anecdotal — the victim who said racism made “me feel like I am a lesser human being”, the one who was made physically ill, the one who said “liberty is incomplete”. All, surely, genuine, heartfelt responses. And all subjective. Psychological damage is difficult to verify and depends on the evidence offered by the person who has commenced an action under the RDA. The current act might indeed be about something far more serious than mere hurt feelings, but the innate problem of a “hurt feelings” test applies equally to Soutphommasane’s argument.

(As an aside about vilification, by the way, it’s worth remembering that when Andrew Bolt was taken to court, the plaintiffs’ counsel invoked the Holocaust, Nazi Germany and genocide in attacking him. It’s hard to think of a greater vilification than to suggest your work is linked to mass murder and racial extermination. Yet that vilification was fair play for a courtroom.)

Where Soutphommasane’s argument is on stronger ground is on “intimidation” alone. Again, there is an element of subjectivity, but less so than “offend” or “insult” or “humiliate”. Intimidation is an action that an objective observer has a far better chance of assessing, and intimidation is clearly damaging to an individual. An 18C revised to focus on intimidation would be far stronger.

Soutphommasane thus fails to construct a workable defence of most of 18C, although his approach doesn’t entirely rule one out, if we could find a way of objectively validating the damage inflicted by vilification. Until that point, the mooted Abbott government approach of confining 18C to “intimidate” would be a prudent amendment that addresses Soutphommasane’s concern in a way that is verifiable.

*Tomorrow: free speech, the white man’s burden and what Soutphommasane got right …

21
  • 1
    4567
    Posted Thursday, 20 March 2014 at 1:38 pm | Permalink

    I find this article impenetrable.

  • 2
    Matthew Drayton
    Posted Thursday, 20 March 2014 at 1:50 pm | Permalink

    @4567 Ha!

  • 3
    Will
    Posted Thursday, 20 March 2014 at 1:57 pm | Permalink

    A surprisingly weak piece by Keane. Tim’s remarks were hardly the strawman he alleges, and Carter’s airy invocation of truthiness is the obvious validation of his criticism and it’s entirely typical of most coverage of the matter. Keane’s more idiosyncratic may be in a different category, but him and David Marr are hardly a good proxy for the mainstream media treatment which has been appalling.

    It is fair to say that the RDA has been completely mischaracterised by most people in the media, including almost all strident critics. Such critics don’t bother to explain that s18C is subject to an objective test overlayed by the courts in considering whether the section is even triggered, and nor do they bother to explain the operation of s18D which provides every conceivable protection for triggering s18C via creative and journalistic expression that’s good faith or public interest. Indeed, Keane himself conveniently omits this major point of qualification in his piece.

  • 4
    Cozmond
    Posted Thursday, 20 March 2014 at 2:05 pm | Permalink

    To add to Will’s comment, Keane your argument falls down because it fails to consider how the court’s have interpreted section 18C and similar provisions in state legislation. This is important because that shows how the legislation works in practice and not just a theoretical reading of the words of the section. It is not whether the victim has subjectively felt hurt but whether a reasonable person (ie an objective test) would be offended, insulted etc. Moreover, the courts have held that a mere slight is not enough to fall foul of the provision - it has to much more significant akin to humiliation. As Will says above, given the defences of good faith in s 18D there is coverage for most media commentary. That Bolt fell foul of this law and couldn’t mount a defence of good faith commentary says it all. He got his facts wrong. Humiliated a group of people on the grounds of their race and refused to acknowledge the humiliation nor his errors of fact.

  • 5
    David Hand
    Posted Thursday, 20 March 2014 at 2:40 pm | Permalink

    18c can and must be changed. Two main objective reasons for this are-

    1. A group of academics were able to successfully convict Andrew Bolt by this means. The substance of Bolt’s articles, though badly written, remain - that awards and scholarships established for the advancement of a disadvantaged section of our community are regularly scooped up by people with no discernible disadvantage.

    This is an opinion he was entitled to express until he was convicted in court. The ability of the act to deliver such an outcome demonstrated that it is a bad law and must be changed.

    2. Roxon’s attempt to extend 18c to other forms of discrimination failed at the first hurdle due to the vacuousness of its thinking and its thought bubble nature. Though people were willing to leave 18c alone in the RDA, they were unwilling to see it extend to religion or s*xuality et al.

    It is ironic that the action taken by the 6 complainants in the Bolt case will bring about its demise and make more difficult the protections of other more worthy cases for legal protection from r*cial vilification.

  • 6
    bushby jane
    Posted Thursday, 20 March 2014 at 4:08 pm | Permalink

    I don’t see the point of ‘fixing’ something that isn’t broken-this law has hardly ever been applied, and has only come to light as Abbott’s man Bolt copped it for getting his facts wrong basically. Everything Abbott is doing (actually undoing) is either for mates or the Catholic church, nothing that really needs to be done or undone.

  • 7
    Will
    Posted Thursday, 20 March 2014 at 5:04 pm | Permalink

    What conviction? Bolt was subject to an order under civil jurisdiction of much less concern to liberty than his actions would be under defamation. A conviction is a matter of criminal jurisdiction. Like most critics, you simply can’t talk about the RDA without speaking in ignorance.

  • 8
    AR
    Posted Thursday, 20 March 2014 at 7:41 pm | Permalink

    What will the next mad T-Bag idea, “an armed society is a polite society” sorta thang?
    I felt soiled to have the saponaceous A/G slither around my opinion centres but, IF I believed in the total integrity of both the Ruling Class (and its clercs)I would go free-for-all.
    So how do we make it free?

  • 9
    Patriot
    Posted Thursday, 20 March 2014 at 10:26 pm | Permalink

    Why special treatment for race, ethnicity, etc? Why not legislate against offending on the basis of weight, height, hair colour, having a little pecker, and so on?

  • 10
    Dubious Virtue
    Posted Friday, 21 March 2014 at 8:45 am | Permalink

    While this law is rarely used it’s effect is certainly far reaching. There are so many topics on which I would never comment publicly because of self censorship. Like being called a pedo, being called a racist at the slightest drop of the hat is something I want to avoid. No longer can anyone look at children playing in a yard without risk… and no longer can so many subjects be talked about without being labeled a racist. I tried to explain why wearing the hajib and burqua is just as anti-feminist as making girls play only with pink toys to a small group the other day. Never again.

  • 11
    Jonathan Maddox
    Posted Friday, 21 March 2014 at 8:55 am | Permalink

    Bernard the only hole you pick in Tim’s argument is that the taking of offence is subjective. I’m inclined to think you haven’t been paying attention to this discussion at all. Soutphommasane addresses this quite explicitly here:

    http://www.theaustralian.com.au/business/legal-affairs/commentary-on-section-18c-often-blind-to-substantial-body-of-case-law/story-e6frg97x-1226854177771

    Quote : ‘As it has been interpreted by the courts, section 18C has involved an objective test. As Justice Drummond noted in Hagan, an early case, “Whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant”. Justice Hely in Jones v Scully also stated that the court must make “an objective assessment” - any evidence that a member of a particular racial group was offended, while admissible, is not determinative of the issue of contravention.’

  • 12
    AR
    Posted Friday, 21 March 2014 at 9:00 am | Permalink

    In the case of PatrIdiot the need for double digit IQ should keep it off the streets.

  • 13
    Brown Nathanael
    Posted Friday, 21 March 2014 at 9:28 am | Permalink

    Intimidating, offending and insulting people on the basis of race creates barriers. Barriers which Bolt, Abbott et al have never had to overcome. Barriers which maintain the status quo, where positions of power, influence and authority are reserved for white males. This is why they want 18C repealed- so that they can continue to behave in a way that excludes.

  • 14
    Mark
    Posted Friday, 21 March 2014 at 10:11 am | Permalink

    Keane go and read some court judgements on 18C or go home. This article is piffle. Somehow you’ve made Soutphommasane seem like a good writer, which should worry you.

  • 15
    David Hand
    Posted Friday, 21 March 2014 at 10:24 am | Permalink

    I think Patriot makes a very good point. It is of course why Roxon failed to extend it. Applying 18C to any other group illustrates its absurdity and impracticality and why it should go.

    The truth here is that lefties are defending the indefensible because they fluked a result against one of their most d*spised en*mies. They got Bolt and that mustn’t be undone.

  • 16
    Patriot
    Posted Friday, 21 March 2014 at 12:14 pm | Permalink

    The creation of human rights to offend against that apply only to certain groups is exactly what Bolt was arguing against in his banned articles. It creates an incentive for people to identify as members of those groups. Mark Steyn sums it up beautifully here:

    https://www.youtube.com/watch?v=XH70VHZ857M

  • 17
    tonyfunnywalker
    Posted Friday, 21 March 2014 at 1:15 pm | Permalink

    I agree with 4567 - what are you arguing- seems circumlocutory in its context. It is interesting that the BBC is carrying an post on Gert Wilders and his comments about Moroccans living in Holland. The same comparisons are made there as were cited in the Bolt Case of the dangers of Vilification of a Race of people in the same way as the Jews as a Race were vilified by the Nazi regime and as a justification for the Holocaust.
    If this change to the Act is all about Bolt and his “hurt feelings” then amendment or repeal of 18C is not justified as the consequence to society in general is far more important in maintaining racial harmony in Australia.
    With a Wilders visit to Australia imminent and the suggestion that a Anti - Muslim Party will be established in July in Australia there is cause for concern as racism is a disease that spreads to include anyone that is racially or religiously different from you and where vilification can be used as a weapon even in the jocular sense.
    Racism in any form is not a joke and its implications are far greater than an individual with ” hurt feelings” — - we need to ensure that Society is reminded of what can happen when it is evident that the government condones and encourages such behaviours by removing the safeguards.

  • 18
    Rubio Diego
    Posted Friday, 21 March 2014 at 4:09 pm | Permalink

    The problem with removing 18 C is not that someone might get their feelings hurt, or be offended by racist remarks, but rather the humiliation and intimidatary styles of certain psycopathic journalists who want to be untouchable !

  • 19
    David Hand
    Posted Friday, 21 March 2014 at 6:00 pm | Permalink

    Repealing 18c is not about Bolt and his “hurt feelings”. It’s about a special interest group using it to gag an expression of opinion.

    When Soutphommasane argued that the law is objective in the Bolt case he said that, “the Federal Court applied an objective test based on community standards - by considering the likely impact on a reasonable member of that part of the community allegedly vilified.” He then went on and justified the Bolt finding by alleging that precedents were followed in that, “the conduct in question must cause profound and serious effects, not to be likened to mere slights”

    So we are left with the judges own subjective reasoning - that the 6 complainants suffered “profound and serious effects”

    Give me a break. Such a finding is a powerful reason why 18C must be repealed. The fact that it has not been appealed is merely tactical. A repeal would almost certainly have overturned the verdict which would then empower apologists for 18C to argue that there is nothing wrong with it.

    18C must go. It has to as it is such an ill considered dangerous limit on freedom of expression. The Bolt case proves it.

  • 20
    AR
    Posted Saturday, 22 March 2014 at 6:56 am | Permalink

    PatrIdiot worships at the shrine of Stain -wotta surprise.

  • 21
    Dingoes Breakfast
    Posted Wednesday, 26 March 2014 at 12:34 am | Permalink

    Racial description is not vilification.

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