Racial Vilification Policy - empowerment, not punishment
Dr Katharine Gelber
There
are many approaches to address the intractable problem of racial vilification.
Ideas already implemented range from clauses in international conventions
(ICERD, ICCPR), to constitutional provisions in Bills of Rights (South
Africa), and criminal and civil statutory provisions (eg Australian
at Cth and state level, UK). It is not my purpose to narrate these existing
provisions to you today. I would be happy to answer any questions about
them during discussion.
Rather,
what I would like to consider today are some newer ways of thinking
about racial vilification policy. These ideas are not presented as necessary
replacements for already existing provisions within Australia, but as
adjuncts to existing policy and/or as new ideas to think about.
My
own proposal is a policy of "speaking back". I first outline
its merits, and then examine other ideas, and highlight the underlying
assumptions which differentiate these approaches from mine.
1. Speaking
Back
My
argument begins from the question of the specific harm occasioned in
the utterance of hate speech. Once the question of what kind of harm
hate speech is has been answered, it encourages us to question
whether the policies that are in place to deal with vilification actually
address that harm, or are altogether differently targeted.
Most
hate speech policies around the world are designed, in some way, to
prevent vilification from being heard. They tend to be perpetrator-focussed.
In Australia policies are primarily designed to extract a retraction
or apology from a hate speaker, or punish a hate speaker with financial
penalties. We have some examples of criminal laws as well in some of
the states, but overwhelmingly in Australia the provisions (that have
been invoked) are civil.
Perpetrator-focussed
policies are logical and easy to understand. If someone does something
which we find abhorrent, we should take some action towards the perpetrators
to try to change their behaviour. This is a policy approach that is
extremely widely used.
However,
I want to question whether perpetrator-focussed remedies really get
at the problem of hate speech. How much is a perpetrator-focussed approach
likely to achieve? More specifically, I want to ask whether a perpetrator-focussed
approach is likely to address in any concrete way the harm occasioned
when a hate speaker targets one or several communities. Preventing hate
speakers from repeating their views in public, or forcing them to pay
penalties may - in the best case scenario - reduce the incidence of
hate speech. But it does not in any direct way provide assistance to
those who are harmed by vilifiers - the members of identified marginalised
communities whose lives are restricted as a result.
Hate
speech is harmful. My paper today rests on this premise, as indeed
do the other remedies I will outline in a moment. Hate speech does not
have to be targeted if and only to the extent that it is seen to cause
another, discrete, separate harm. Hate speech, in and of itself, is harmful, as people at this conference attest. This argument may be recognised
here, but it is not universally endorsed in the policy world.
Hate
speech doesn't just impart incorrect information and stereotypes about
people. It stereotypes its targets, it restricts their ability to participate
as fully equal human beings in society. Racist stereotypes can contribute
to a climate of justifying violence and discrimination against marginalised
groups. But at the same time racist hate speech in fact does the marginalising.
Vilification is not just unpleasant. It does things, which have been
documented at this conference and elsewhere. These include limiting
victims' personal liberty; leading hearers to internalise discriminatory
messages, so that they begin to believe them; and silencing. Of these,
the silencing impact is the most immediate, and I would argue, susceptible
to remedy by hate speech policy.
If
vilification silences and disempowers its targets - and this is both
its aim and its outcome - then hate speech policy should be designed
to redress the harm occasioned. Perpetrator-focussed remedies tend not
to render targeted communities less silenced or less disempowered. This
is why I advocate a policy of "speaking back"; a policy of
providing educational, material and institutional assistance to targeted
communities to respond to incidences of hate speech.
Providing
assistance to targeted communities to respond allows them to challenge
the silencing effects of hate speech - by actually speaking. It also
allows them to contradict the claims made by hate speakers - by sending
out their own messages.
In
this way the hate speech has been responded to in an appropriate way,
a way that empowers targeted communities to speak back. This policy
is not perpetrator-focussed, rather it is focussed on empowering targeted
communities.
A
policy of providing appropriate assistance to targeted communities overcomes
a primary criticism of free speech advocates. Free speech advocates
who oppose vilification policy tend to do so on the grounds that vilification
policy (which is perpetrator-focussed) will only (directly or indirectly)
restrict speech. A common agreement is that the best way to deal with
hate speech is to respond, to reply, to fight back with your own words,
that is with more speech.
The
shortcoming of this approach is that it ignores the very real and tangible
harm of hate speech - that is, the disempowerment of targetted communities.
Answering hate speech is not easy. Often those most subject to racist
attacks are those least likely to feel empowered to respond. Hate speech,
as Langton argues, often renders its victims unable to speak back.
This
is where I believe there is a role for anti-discrimination policy. It
is not enough to exhort communities to answer back when they
are prevented from doing so by real life circumstances. Instead, policy
could be designed to provide assistance to targeted communities
to speak back. In this way, anti-discrimination policy could be used
to empower targets rather than to punish victimisers.
An
example of how this policy might be implemented in practice can be derived
from the Wagga Wagga Aboriginal Action Group judgement made in the Equal
Opportunity Tribunal on 19 May 1995. [1] This was the
first racial vilification complaint ever upheld by EOT and involved
comments made by a Council Alderman at the 1993 Launch of the International
Year for the World's Indigenous People on 11 June, and at a subsequent
council meeting on 28 June and on Channel 10 on 2 July.
The
EOT found that comments made by Alderman Eldridge were abrasive and
that he vilified indigenous people. In his comments he had made reference
to an indigenous land claim which involved land in the Wagga Wagga area.
He also referred to wars over land, including Agincourt, Waterloo and
Nui Dat. He was ordered to pay compensatory damages to the organiser
of the Launch ($3000). He was also ordered to publish an advertisement
in local newspapers and to refrain from continuing his racist conduct.
In
their finding the EOT said that the complainant asked that any order
for compensation be put towards the building of a resource centre in
Wagga Wagga to encourage Aboriginal cultural awareness for the benefit
of indigenous and non-indigenous citizens. But the Tribunal was unable
to make such an order under the terms of the Act and left that up to
the complainant.
It
seems this kind of incident would be a good opportunity for a speaking
back policy. Members of the local indigenous community could be supported
to organise public events, meetings or pamphlets which explained the
land claim. Support could be made available to organise trips to local
schools to explain indigenous culture and the importance of land to
indigenous people. In a number of ways, it would seem important in this
context that educational, institutional and material support be made
available to the local indigenous community to respond to the harms
occasioned by Eldridge, as an adjunct to the remedies which were possible
under existing policy.
Other Approaches
I
will move now to a consideration of some other policies that have been
proposed. I will outline six different approaches, and briefly describe
them for you.
2. Restricting
"low value" speech (Matsuda; MacKinnon & Dworkin);
One
policy proposal is to allow for the classification of separate category
of "low value" hate-speech-act which may be regulable while
leaving speech important to, especially political, public discussion
free from restriction (Matsuda 1993; MacKinnon and Dworkin in Hudnut ). [2] The form of regulation might take criminal
(jail, penalties) or civil (torts, damages) forms.
This
proposal is difficult to operationalise. It is very difficult in law
to try to differentiate "low value" speech from "high
value" speech. Other people have tried to make the distinction
between "political" and "non-political" speech (this
is a challenge facing our High Court in the free speech cases). This
policy is still perpetrator-focussed, and punitive or restrictive depending
on what was to be done with the separate category of low value speech.
3. Defamation
laws for face-to-face encounters (Flahvin);
An
"accommodationist" approach where face-to-face encounters
may be regulated via "libel" laws, but group libel/defamation
may not (Flahvin 1995).
Flahvin
argues that the strength of focussing on face-to-face encounters only
is that such an approach would be aimed only at speech which intimidates
the victim, rather than at speech which conveys a message about the
whole group to which a victim is perceived to belong (1995: 337-338).
This
approach is perpetrator-focussed, as it would allow a target to sue
for damages. It is also punitive. This approach would also render a
lot of vilification immune to regulation, a consequence which appears
to be motivated by a desire to provide for the protection of speech
from excessive government regulation. But the result would be a rather
arbitrary distinction between face-to-face encounters and other vilification.
Is there any supporting claim that vilification against one is more
harmful than vilification against a million? If so, why?
Also,
there is no supporting argument that the harms caused by non face-to-face
vilification are any different from the harms caused by face-to-face
encounters. This proposal also does not address the silencing effects
of vilification.
4. Tort claims
by individual victims (Delgado)
Allowing
tort claims (civil suits for damages) by individual victims of hate
speech (Delgado 1993).
This
is a perpetrator-focussed and punitive approach. Claims for damages
are costly and time consuming. Their success depends, in part, on the
perpetrator having assets, although sometimes people claim that just
having the award made is sufficient, even if no money changes hands.
More
importantly, the policy does little to ameliorate the silencing effects
of hate speech. In fact, it places the emphasis for proceeding on a
hate-speech complaint on the determination and resolution of the individual
victim to pursue a claim for damages incurred.
5. Restrictions
on "harmful" speech (not content-based) (Sunstein);
Instigating
content-neutral restrictions on speech, which are focussed not on the
content of the utterance but on an assessment of harm. This can be justified
by the neutral claim of redressing "desperate circumstances"
("caste-like features") (Sunstein 1993).
This
approach may be helpful, but it does not help empower targeted communities.
6. Punishing
hate-speech acts directed at historically disadvantaged/marginalised
groups (Matsuda)
Allowing
for a one-way, content-based hate speech law which punishes hate-speech
acts directed at historically disadvantaged/marginalised groups (Matsuda
1989: 2357).
This
approach may be helpful, but it does not help empower targeted communities.
7. Group defamation
(Sadurski; MacKinnon; Scutt)
Permitting
group defamation claims against vilifiers, subject to a strict interpretation
of the "harm" the speech invokes (Sadurski 1992; MacKinnon
1993; Scutt 1993).
This
approach may be helpful, but it does not help empower targeted communities.
Note this proposal is opposite to proposal #3, which specifically rejects
group defamation.
Summary
To
try to summarise these approaches in a way that makes sense for you,
they can be divided into three categories:
Existing
racial vilification statutes in Australia tend to fall into the first
category. They aim to generate an apology or retraction, or in the case
of intransigent hate speaker/s, force the payment of a penalty.
I
think a policy of speaking back is beneficial because it empowers the
targeted communities, it assists people to participate in speaking,
and it recognises and responds to the silencing occasioned in hate speech.
Endnotes:
1.
Wagga Wagga Aboriginal Action Group & Ors v. Eldridge, Complaint
Nos 74, 78 & 79 of 1994
2.
American Booksellers Ass'n. Inc. v. Hudnut, 771 F.2d 323 (1985).
Bibliography:
Delgado,
Richard 1993. "Words that Wound: A Tort Action for Racial Insults,
Epithets and Name Calling". In Words that Wound: Critical Race
Theory, Assaultive Speech, and the First Amendment, M. Matsuda, C. Larence,
R. Delgado and K. Crenshaw (eds.), 89-110. Colorado: Westview Press.
Flahvin,
Anne 1995. "Can Legislation Prohibiting Hate Speech be Justified
in Light of Free Speech Principles?". UNSW Law Journal 18
(2): 327-240.
MacKinnon,
Catharine 1993. Only Words. Cambridge, Ma: Harvard University
Press.
Matsuda,
M. 1989. "Public Response to Hate Speech: Considering the Victim's
Story". Michigan Law Review 87: 2320.
Matsuda,
M. 1993. "Public Response to Racist Speech: Considering the Victim's
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Wojciech 1992. "Offending with Impunity: Racial Vilification and
Freedom of Speech". Sydney Law Review 14 (2): 163-195.
Scutt,
Jocelynne A. 1993. "Group Defamation and the Vilification of Women". Womanspeak, June-July: 4-5.
Sunstein,
Cass 1993. "Words, Conduct, Caste". The University of Chicago
Law Review 60 (3 and 4): 795-844.
