“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 …

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey