Freedom of speech is central to liberal democracy, but it does not extend to the right to undermine the dignity of racial groups, writes Raoul Renard.
Indigenous footballer Adam Goodes has recently been subjected to relentless booing from the stands. While many resist calling this racial vilification – particularly crusty old white Australian males (here’s looking at you Bolt, Warney, Price, Alan Jones et al) – it is worth exploring anew the competing values of free speech and the freedom from being vilified according to one's race.
Beyond Goodes, here is another all too common example:
This is an example of racist speech that was taken down by an internet service provider following a complaint to the Australian Human Rights Commission.
Few would disagree that hateful speech directed at a racial group is to be discouraged. But is social pressure sufficient? Can we go further and regard as legitimate the exercise of state coercion to restrict the expression of hate speech? In arguing that we can and should, I mount a dignitarian rationale for the restriction of hate speech.
John Stuart Mill, utilitarian and author of On Liberty, famously stated that there is a limit to the legitimate interference by the state with individual liberty, conceived of as an absolute principle:
‘... the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.'
Without further clarification, this "harm principle" neither licenses nor restricts the expression of hateful speech. We first need to clearly define what is meant by the phrase ‘harm to others’.
Perhaps Mill gives us further assistance in a later iteration of the Principle:
‘... for such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishment.'
Yet what action that should be deemed prejudicial to the interests of others – and what interests matter – are both still underdetermined.
When Racism Masquerades as “Equality”: The Adam Goodes Furore http://t.co/Day2TktIu5
— Kate Carruthers (@kcarruthers) August 4, 2015
Hateful Opinions
It is apparent from analysing the second principle proposed by Mill, the "opinion principle", that the famous utilitarian thought that expressions of opinions, no matter how hateful, would not amount to harm in the relevant sense.
Mill states:
‘... there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.'
For Mill, the holding of an opinion and the expressing of the same are inseparably linked. On this understanding, then, even the most denigrating of opinions – for instance that Jews are vermin, or that Tutsis are cockroaches that ought to be exterminated – are to be freely expressed.
There is one caveat to this general claim, which may be described as the prohibition of incitement to violence.
While a man ought to be free to rail in the printed press against the immoral practices of the rich corn dealer depriving the poor of much needed nourishment, to excite an angry mob standing outside the corn dealer’s house with the same sentiment would fall within the harm principle. In this way, incitements to violence, such as the call for the killing of Tutsi "cockroaches" over the Rwandan airwaves in 1994, would amount to relevant harm to others worthy of legal restriction.
But hate speech in contexts where imminent violence is unlikely will be protected under Mill’s framework. Mill might belong to what Australian Race Discrimination Commissioner Tim Soutphommasane has termed the ‘thick-skin brigade’. That is, those who only regard physical harm as relevant and view complaints about hateful words as misplaced solicitude for hurt feelings — certainly not of sufficient gravity as to warrant legal restriction.
Is this position tenable? I don’t think so. Rather, the harm principle ought to extend to affronts to the dignity of the human person. Thus, hate speech that has the intended effect of nullifying the equal status of a racial group may legitimately be restricted.
Race Discrimination Commissioner @timsout on the booing of #AdamGoodes. http://t.co/otAtpUQutc pic.twitter.com/L6tCcforOo
— RN - Radio National (@RadioNational) July 30, 2015
Dignity
Dignity is an elusive concept.
Nietzsche viewed dignity as a mixture of humanist, liberal, Christian, socialist, and Kantian ideas. The incorrigibly aristocratic De Tocqueville, an early contemporary of Mill, saw "true dignity" as accepting your proper station in society. By contrast, Kant sourced dignity in the intrinsic worth of humans by virtue of their capacity to reason.
The concept of dignity has much normative currency in contemporary human rights discourse, and yet without clarity there is the distinct possibility that it may become what Schopenhauer termed:
‘... the shibboleth of all perplexed and empty-headed moralists.'
To allay such fears, for present purposes, I will adopt legal scholar Jeremy Waldron’s view of dignity:
‘... a person’s basic entitlement to be regarded as a member of society in good standing.'
It is an inherently egalitarian concept, conferred upon humans because they are humans. Hate speech that deprives a racial minority of equal treatment as worthy members of society offends the right to dignity. Fundamentally, a right to dignity entails the correlative duty to recognise human beings as equals.
This does not require that individuals in society accord other individuals or groups equal respect in the colloquial sense. Indeed, many conservatives in the United States despise Barack Obama. The same could be said of the esteem in which I hold our current prime minister. But this lack of respect does not offend dignity.
To see why, we can distinguish between two different ideas of respect: "appraisal respect" and "recognition respect".
Perfect start to #AFLSwansCrows game @SCG -standing ovation for @sydneyswans & Adam Goodes #Respect #IStandWithAdam pic.twitter.com/Y1chPXC91I
— sam mostyn (@sammostyn) August 1, 2015
For philosopher Stephen Darwall, recognition respect entitles people:
‘... to have other persons take seriously and weigh appropriately the fact that they are persons in deliberating about what to do [or say].'
Appraisal respect, on the other hand, is conferred by one person on another by virtue of some quality in the other that pleases the appraiser. For example, I respect Fela Kuti for his transcendent afrobeat rhythms, whereas I lack a similar level of respect toward Britney Spears. I accord both recognition respect, however, as human beings worthy of consideration and it is this sense that is relevant for our discussion of hate speech.
Mere offence
Where, as I have argued, there is a right to dignity; there is no comparable right not to be offended.
I state this for two reasons:
- some person is likely to be offended by all manner of otherwise innocuous speech, and as there are cogent reasons to safeguard freedom of expression, the harm principle ought not be extended to mere offence; and
- the state should not outlaw speech the effects of which are inherently subjective.
I discuss each reason in turn.
Following Mill’s understanding of liberty, there is a strong prima facie case for freedom of opinion (and related expression). One reason for this is that if we silence the views of another, we may erroneously believe our own position to be true. Assuming the infallibility of our own arguments is a severe impediment to societal progress. Secondly, if we do not allow for the contestation of received opinion, then the orthodoxy may lose its vitality and pass from rational wisdom to rote-learned dogma.
The importance of free expression established, we should be careful in outlining that speech that can truly be said to cause harm to others. As I have stated, speech that violates the right to dignity shall fall within the harm principle, but speech that merely arouses negative emotions should not.
It should be noted that I am not dismissing the gravity of "negative mental states" felt by an aggrieved person.
I would not be so bold as to state, as Justice Hayne did in Monis v The Queen, that
"Anger, resentment, outrage, disgust and hatred, however intense, are transient emotional responses which may, and more often than not will, leave no mark upon the individual who experiences them."
To the contrary, offence can surely leave a lasting impression. But these hurt feelings are not – at least not directly – what protection against indignity seeks to prevent. Indignity is qualitatively different: by divorcing one group of people from the rest of humanity by virtue of their race, hate speech characterises a group as less than human.
As one respondent to an AHRC inquiry stated, it can make the target of such speech feel
"[feel] like a second class citizen."
It is this vice that hate speech regulation properly seeks to address.
Another reason why speech that merely offends someone ought not to fall within the ambit of the harm principle is that offence is an inherently subjective notion. It is not the proper role of the courts to determine a legal sanction purely from the subjective emotional reactions of an individual. This is partly a corollary of the first objection: people are liable to be offended by all sorts of speech. On the other hand, an affront to dignity, insofar as it reflects a person’s standing in society, can be determined objectively. It is possible to identify certain subjects or ways of expressing ideas that past experience has shown are likely to undermine the dignity of minorities. It is not, however, possible to determine with any degree of reliability what will or will not offend.
Section 18C of the Racial Discrimination Act 1975 (Cth), as it currently stands, reflects the importance of an objective approach to hate speech regulation. It requires the offence, insult, humiliation or intimidation to be ‘reasonably likely, in all the circumstances’.
By contrast, in the furore following Andrew Bolt’s racist blog posts, the Gillard Government sought unsuccessfully to remove an objective standard, stating in the Human Rights and Anti-Discrimination Bill 2012 that ‘conduct that offends, insults or intimidates’ a person 'as a matter of fact' will amount to prohibited discrimination (section 19(2)(b)). Where the later comments of Attorney General Brandis are indicative of membership of the thick-skinned brigade, the removal of a reasonableness test in the 2012 Bill constituted an unfortunate case of overreach that would extend the harm principle beyond its necessary limit.
Freedom of speech is central to liberal democracy, allowing for the flourishing of ideas and the exercise of individual liberty. Though Mill was right to assert that the only legitimate end of governmental restriction of liberty is to prevent harm to others, 'your right to swing your arms ends just where the other man’s nose begins’ is an incomplete statement of the harm principle.
Rather, hate speech that undermines the right to dignity of racial groups ought to be encompassed by Mill’s dictum. On the other hand, speech that merely elicits negative emotions, howsoever unpleasant they are, ought to be freely expressed, limited only by social disapprobation.
In short, statements that merely offend someone’s personal tastes are fair game. ‘You gook fuck off to China’ is not. The interminable booing of Adam Goodes? I’ll let you be the judge.
Raoul Renard is a Juris Doctor student at Melbourne Law School. You can follow Raoul on Twitter @RRenrui.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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Should be the last word on the silly response by the little people over Adam Goodes. pic.twitter.com/iGvDha0tGj
— Mr Denmore (@MrDenmore) August 4, 2015
