Election time is a very bad time to be an Australian. We are now squarely in the world-wide pattern of rejecting major parties. I would prefer to avoid politics, and observe that most of our first white boat people in the First Fleet were illiterate, and undesirable, but some ideologues refuse to lie down.
More than twenty years ago, I attended an IBA conference in New York. It had been scheduled for Nairobi, but the venue was changed to New York because of terrorist unrest in Kenya. (The Kenyans said this was all a CIA plot.) Our media law section was to have a session with the editor of The Kenya Times. My American colleagues were First Amendment lawyers and ‘free speech’ fanatics. I, not being a fanatic, was asked to look after the editor in the debate on the rostrum. The room was packed with coloured people, and it soon became obvious that my man, the editor, who was coloured, had the numbers on his side.
The editor produced that day’s morning edition of the Murdoch tabloid of New York. The front page had a crude, full-on full-page swipe at the love life of the then wife of a crude lout called Donald Trump. The back page hurled abuse in giant headlines at the Yankees and said: ‘Stick a fork in them.’ The front and back pages were therefore colossal and provocative insults. They were standard fare for New York but the editor said, entirely credibly, that if he had published either of those pages in his paper, there would have been blood on the streets of Nairobi before the sun had set.
This was a sobering reminder that our tolerance of insults varies from place to place and time to time. There are still many places in the world where I could be executed for saying that God does not exist.
Any society that has laws will have laws against killing people or physically hurting them. We have laws, civil and criminal, about assault. What about when the assault is verbal? Do we have laws against insulting language? Yes – at least where the insult is made in public.
What is involved when one person insults another? The key meaning in the OED is ‘to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage.’ If you look at the OED, for both the noun and the verb, you will see the link between ‘insult’ and ‘assault’. An insult is a verbal kind of assault or attack by one person on another. To ‘outrage’ someone is to do something they resent so much that they are enraged. The usual reaction of the victim is to seek revenge.
We have laws against verbal assaults called insults because we realise that verbal assaults can be just as wounding as physical assaults. We also know that one of the primary objects of the law is to keep the peace, and that one easy way to produce a breach of the peace is for one person to insult another, just as it is for one person to strike another. In many cultures, an insult could lead to a duel and death. In many cultures, a religious insult, or an insult to a family, will lead to death without the formality of a duel, much less a trial.
So, if in Australia one person approaches another in public and says ‘Your father is a coward and your mother is a slut’, that person has committed a criminal offence. It would be silly to say that the father and mother should be left to a civil action in defamation, if they have one, or that the person directly insulted, and outraged, might inquire of a lawyer whether he or she has any form of action at all. We think that the police should have the power to make an immediate arrest in order to keep the peace. And it would be just as silly to say that such a law affects something called ‘freedom of speech’. Most laws do, especially if the law expressly refers to speech. It adds nothing to this conversation to state that inevitable result. The question is whether such a law is warranted. Very few people think that such a law is not warranted.
Most see such a law as essential to keeping the peace in a civilised community. Similarly, most people think they should be able to walk down the street or go the football with their family without having to listen to or read obscenities. There is no great issue of policy much less ideology here – we are just talking about keeping the peace. Most people know what that is and what we should do to achieve it.
We in Australia therefore have these laws about insulting people in public. We are much more sceptical about any suggestion that we should outlaw insulting religion or the nation. But that scepticism need not disturb our dealing with what we regard as plain cases of insult that the law must deal with.
Similarly, laws against insulting or offensive language have been abused before. If the coppers could not think of anything else to charge a protester with, they used to produce a ‘sheet of language.’ They don’t do that now, and abolishing a law may be an extreme way to deal with the abuse of it.
So, the Australian states have various laws about insulting or offensive behaviour in public. Well, then, what if an insult or offence is directed at someone because of their race? In addition to our general state laws, there is a federal law for insults based on race. That law says that you must not publicly insult or humiliate people because of their race (Racial Discrimination act, 1975, s. 18C). Unlike the state act, the federal act does not create a criminal offence. You can go to jail for insulting behaviour without more under the state law, but if you insult a person on the ground of their race, you cannot be imprisoned or even charged with a breach of the law under the federal act. The remedy for a breach of this law is a complaint to a government agency.
We are then left with an intellectual curio. People do not complain about a law that makes publishing insulting words a crime, but they do campaign against a law that doesn’t make such an act a crime, and is confined to cases where the insult is made on the grounds of race. That qualification if anything would make the insult more wounding, provocative, and dangerous. What is the explanation of this puzzle?
You cannot help wondering whether an obsession with ideology distorts people’s views so that they lose contact not just with how ordinary people think, but with reality.
Just think of the laws covered by the following exercises involving speech.
I steal your Ph D thesis and claim it as my own.
A man telephones the mother of a child to tell her, falsely, that he has just seen the child run over on the way to school and killed. He does so purely to hurt the mother. She miscarries and loses her next child.
A man at a huge religious rally in the Punjab seeks to cause panic by shouting that religious opponents are attacking from another quarter. He does so merely to test his power and to observe the chaos and death. Hundreds, foreseeably, die.
A young man tells his best mate in strict confidence that he is gay but that he does not propose to come out in the near future. His mate immediately goes online to tell the world. He says that he is doing so to save his mate from cowardice and hypocrisy, and because he believes in freedom of speech.
Someone offers you a fortune to bomb the P M.
A man approaches a husband and wife in the street and abuses the wife and says she is an Asian slut.
A woman approaches the same husband and wife and says that the husband has been having an affair with her for years but she is going to terminate it because he is lousy in bed and has issues with personal hygiene, false teeth, and prostheses.
A man walks around a muslem wedding ceremony with a sign saying that the ceremony is as fake as the faith of its participants.
A man having a dispute with a highly strung Sikh neighbour calls him over to the fence to tell him in front of his family that his culture is intellectually, morally, and spiritually bankrupt. He does so with the purpose of causing the Sikh to retaliate and so lose face in the neighbourhood, and enable him to go to law against his adversary.
A politician deliberately fans racial division to get elected. At one rally, he says that the coloured people are the missing link with the apes. He succeeds, but the banlieues are in flames
A blackfella goes into a bar in Alice Springs and quietly and methodically and soberly begins to insult both white and coloured people at the bar by reference to their race.
In each case, the person making the statement is intending to cause harm to another person. Is there any moral or political difference in those cases of insult where the insult is based on race? Has the phrase ‘freedom of speech’ any application in any example? Should the law be silent for any of these cases?
The French Declaration of Rights of 1789 said in article 4: ‘Liberty consists of the power to do whatever is not injurious to others.’ Some principle like that must underlie any legal system of a nation that says that its citizens are free. My freedom of speech does not give me a licence to hurt others. It does not override my liability for using speech to break a contract, commit a crime, make a nuisance, breach the peace, or defame someone else – or for any other form of speech that the law makes unlawful or illegal.
We can argue about the extent to which any crime or civil wrong may impinge on our right to freedom of speech, but singing a hymn to that ‘freedom’, or proclaiming yourself a warrior in its defence, does not advance the argument. The warrior is left to declaim loudly to the birds – if you seek to settle the differences that arise from conflicts between people by reference to some grand ideological prescription, the most polite word for your world view is bullshit.
If I got booked for speeding between Wodonga and Albury, and I complained that this ticket infringed my right to the absolute freedom of trade and intercourse conferred by s. 92 of the Constitution, I would be making much more sense than if I said that proceedings against me for insulting or offensive words in public infringe my right to freedom of speech. They would both be bullshit, but there are, after all, degrees of bullshit.
So, when recently someone put out a banner up at the footy that was offensive to people of one faith, there was a general and quick display of anger and a popular wish that the law be enforced to remove the offensive banner. And the ideologues sensibly said nothing.
Poet of the month: A D Hope
Our birth is but a sleeping and a forgetting…
When the night comes, I get
Into my coffin; set
The soul’s brutal alarm;
Pull the green coverlet
Over my face; lie warm,
Deaf to the black storm.
Ah, but the truce is vain;
Then Chaos comes again;
The Mind’s insatiate eye
Opens on its insane
Landscape of misery,
And will not let me die.
A gunshot tears the brain –
That one quick crash of pain
Pays for a lasting sleep.
Be finished with it then!
What argument can keep
You from that step?
The argument of fear,
A whisper that I hear
A voice that haunts my bed:
‘The only sleep is here;
Suffer your nightmare; dread
The daylight of the dead.’