18C raised its contentious head again yesterday, and today goes to the senate to be passed. My guess is that it will be knocked on the head.
The amendment they’re looking to pass is to replace the term ‘offend’ with ‘harass’. What to you and me may seem semantics are actually pretty important distinctions in the legal world. To boil it down to something everyone can understand it equates basically to the right of someone to call another person the ‘n’ word.
For proponents of free speech it’s tricky, though there is a difference between the right to free speech and the right to vilify or abuse. Still, there is ambiguity.
I think any intelligent person understands there must be a limit to what free speech permits in a civilised society. The question is, where do you draw that line, how to you define it, and how is transgression measured?
I don’t think this will ever be a simple exercise because, in my view, context counts for a lot. Certainly there are words, actions and phrases that most of the reasonable public believe to be out of bounds, and in fact I think the pub test is basically the best determinant of what should be permitted. In general, it combines common sense with reasonableness, and most people know in their gut when commentary has gone too far. That’s great, but how do you legislate the pub test?
I had a long debate about it with my nephew on Twitter last night. He came out applauding the proposed changes, not really appreciating – I think – what they meant. I took issue with him. The experience of a white, middle-class, educated Australian male is very different from that of the typical victims of this. What may seem casually offensive to us is very often oppressive to others. The reason for that, as I explained to him, was historical and cultural precedents we couldn’t begin to appreciate.
He has a very absolutist view of the issue, and it reminded me of myself at his age. When you’re that age it’s very easy to be gung-ho about your passionately held beliefs and in being so the subtleties are often lost (incidentally, that was the sort of comment that would infuriate me at his age). As I explained, there is very little wisdom in absolutist positions – nothing is all one thing or another, truth is generally somewhere in between, and a key to life is to keep things in balance – that much I’ve learned.
I think he believed to ‘offend’ was essentially to say something that might hurt someone’s feelings, when in fact – in the legal definition of it – it means to cause ‘profound’ grief – such as calling someone the ‘n’ word. Given we the current laws allow for the offensive cartoons of Bill Leak I don’t understand why they need watering down. What is it that people can’t say today that they want to say? In any case, the current laws don’t prohibit free speech – they simply allow for someone offended by it to seek redress.
As anyone who has been on Twitter would know, it’s hard to prosecute an argument in 140 characters, which is why there is so much trolling and abuse on it (ironically). So we went backwards and forwards before my nephew signed off with the kind of claptrap I abhor – that if I don’t worry about free speech, then no-one will care about mine. It’s the sort of thing that Andrew Bolt would say, or a politician at a doorstep searching for a catchy sound bite for the evening news. It sounds good, but means fuck all. It’s rhetoric and it gives me the shits.
For all of this, it is a delicate and difficult discussion. I believe strongly in free speech, but believe also very strongly that we must preserve the rights of the least privileged (particularly) and most vulnerable. I can look after myself, but then I’m hardly a target demographic. These laws are in place not for me, but for those who actually need it.
The problem with unfettered free speech is that it allows the kind of commentary that confirms or incites racist views. It encourages the more extreme in their extreme views and language. If there’s not a barrier to butt their heads up against then the risk is that it becomes rampant. As we know, language often leads to action, and informs attitudes.
For me that’s easy. It becomes more complex when it’s not abuse that is impacted, but comment. Charlie Hebdo is a good example of that (my nephew also brought up South Park as an example). If you recall Charlie Hebdo was targeted by Muslim extremists because they were derogatory of the Muslim religion in general, and the prophet Muhammad particularly.
Does this cross the line? To the devout Muslim it does, and certainly to the extreme. There’s a good argument that people’s beliefs should be protected – and yet in western society there is a long history of irreverence. The Catholic church is a frequent target and doesn’t like it, but does it make it wrong?
It’s a western attitude that very little is above the law as such. Anything is fair game. That’s very different to most other cultures. Are we to exhibit cultural sensitivities to others that we don’t to ourselves? Should we be sympathetic to the mores of others, or simply be true to our own?
This is where the line gets blurred. There’s no simple take on that, and even the pub test would leave me feeling uneasy. For me there’s no definitive answer to that – but I would reference intent and context. If the intent is simply to vilify another set of beliefs then it crosses the line; if it is the product of a more serious analysis or commentary then it is more permissible. In simple terms, if it is gratuitous then let it go, but even then, what defines offensive?
For questions such as this I often find myself asking what George Orwell would say? I think Orwell was an uncommonly wise man when it came to questions of politics and the culture of power. He was a socialist who was an outspoken critic of communism and the Soviet Union. He believed in language and clarity and freedom of expression, but he was also very much on the side of the oppressed and the downtrodden. I don’t know, but think he might agree with me.