1. We don't have to be free speech absolutists.
2. We don't need to panic about this particular law in Victoria.
3. But we do have reason for concern and vigilance.
Now, more than ever, it is important to speak up with robust criticisms of religious beliefs, practices, groups, and institutions in ways that might cause offence to those concerned and might have the effect of causing some listeners to feel contempt for the religious believers concerned.
How far can we go in expressing serious criticism or even contempt for people's religious beliefs … or for those who have those beliefs? What about simply engaging in pointed satire along the lines of Voltaire or Bertrand Russell?
Why free speech?
1. Democratic justifications. Promotes free flow of ideas needed for political democracy and democratic institutions and limits ability of the state to subvert rights and freedoms (we can speak out about it). Allowing its suppression endangers good government. This relates to aspects of free speech's political role in a liberal democracy.
2. Psychological and moral justifications. Valuable as part of the self-actualisation of speakers and listeners. This stresses the particular importance of language, symbolism and representation for our lives and autonomy. It can be developed further by referring to the importance for individuals of communicating deeply held beliefs and the value of creativity as expressed in literature, art and many other ways, including personal presentation or "style". This highlights the fact that we are beings with psychological needs that involve self-expression.
3. Marketplace of ideas, which includes the search for truth. John Stuart Mill's classic defence of free speech, in On Liberty (1859), is actually phrased as a defence of "the Liberty of Thought and Discussion". Mill did not express this idea in terms of a "marketplace" and his conception was essentially that of freedom to develop and discuss ideas in the search for truth or understanding.
Mill also makes the point that we must not allow any view, however certain it appears, to stand unchallenged.
Ronald Dworkin actually goes further than Mill—he wants us to be able to live our lives in ways that will tend to shape the moral ethos of our society without the state saying that people with some ideas have a right to do so, and others don't.
In any event, speech aimed at criticising religion is especially valuable—all the underlying rationales apply here. This is a kind of speech that we should not want to chill.
Provisions found in RACIAL AND RELIGIOUS TOLERANCE ACT 2001 (Vic)
Section 8(1) is a key provision.
8. Religious vilification unlawful
(1) A person must not, on the ground of the religious belief or activity of a person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of person.
But see also section 25
25. Offence of serious religious vilification
(1) A person (the offender) must not, on the ground of the religious belief or activity of another person or class of persons, intentionally engage in conduct that the offender knows is likely -
(a) to incite hatred against that other person or class of persons; and
(b) to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.
Note: "engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material. …
(2) A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons
Note: "engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material.
Arguably section 25 will only be invoked in truly extreme cases. There is a strong mens rea requirement. However, we may still worry about sub-section (2) where it is sufficient to intend to incite severe ridicule. How severe is "severe"?
Defences against section 8.
First, see section 12 which covers private conduct. You're pretty safe if you only say something at a private dinner party.
Section 11 is more significant:
11. Exceptions-public conduct
(1) A person does not contravene section … 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith -
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for-
(i) any genuine academic, artistic, religious or scientific purpose; or
(ii) any purpose that is in the public interest; or
(c) in making or publishing a fair and accurate report of any event or matter of public interest.
(2) For the purpose of sub-section (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.
So what does this mean? It's defined widely but then we have wide exclusions. What conduct is meant to be proscribed?
However, while this seems broad, much of the academic discussion expresses the fear that it will be interpreted sufficiently broadly so that the exceptions eat up the rule.
I have the opposite fear. We will see cases where what seems to be obviously bona fide behaviour that comes under, say, discussion of matters that it is in the public interest to discuss … but it will be held that it was not both reasonable and in good faith.
So the issue comes down to what section 8 means and then to definitions of "good faith" and "reasonableness".
Catch the Fire Ministries case raised all this. What went wrong in that case?
Islamic Council of Victoria brings case against Catch the Fire Ministries and two pastors. Relates mainly to a seminar in Surrey Hills run by Pastor Daniel Scot in March 2002.
VCAT (in the person of a County Court judge, Judge Higgins) made a decision on 22 December 2004, finding for the complainant (i.e. the Islamic Council). Orders made (including an apology) on 22 June 2005.
Court of Appeal handed down its judgment on 14 December 2006. Sent case back to VCAT to be reheard by a different member.
Settled in mediation on 22 June 2007.
Settlement partly confidential but includes a joint statement according to which the parties accept and affirm:
1) the dignity and worth of every human being, irrespective of their religious faith, or the absence of religious faith;
2) the rights of each other, their communities, and all persons, to adhere to and express their own religious beliefs and to conduct their lives consistently with those beliefs;
3) the rights of each other, their communities and all persons, within the limits provided for by law, to robustly debate religion, including the right to criticise the religious belief of another, in a free, open and democratic society;
4) the value of friendship, respect and co-operation between Christians, Muslims and all people of other faiths; and
5) the Racial and Religious Tolerance Act forms part of the law of Victoria to which the rights referred to in paragraph 3 above are subject.
Outcome before the Court of Appeal
Note, court tends to follow legal reasoning in a New South Wales racial vilification case, Kazak. In Kazak, the Financial Review was taken to court over an opinion piece that allegedly involved racial vilification of Palestinians. I was critical of this case (in an article in Quadrant, early 2001) when it was decided in 2000.
However, the case was later overturned on appeal in 2002.
Suggestion: Problematic outcomes can be resisted by respondents that are well resourced and determined.
Meaning of section 8
Issue is whether the natural and ordinary effect of the speaker's conduct as a whole (its effect on an ordinary person in the actual audience) would be to create hatred (or whatever) for the people with the religious beliefs, on the ground of those religious beliefs. (All judges seem to agree so far.) It does not matter whether the hatred was intended by the speaker (but this seems inconsistent with words in sections 1 and 9, which seem to imply otherwise, though that may be a drafting glitch; Neave JA thinks that there has to be at least some link between the conduct and awareness by the speaker of the class of people's beliefs, so there is an inconsistency in how the judges handle this ). It does not matter whether the people I the audience actually felt hatred, etc. Nor, however, is the test that the religious folk are offended, or anything similar.
Does not relate to hatred of the religious beliefs, e.g. those of Islam, but must be hatred those who have them. Justice Nettle is fairly (though not totally) firm about this, but Justice Ashley wants to leave it open, while Justice Neave is not keen on the distinction. She says that even a true statement about a religious belief, such as that it includes a duty to proselytise, may arouse hatred of its adherents if heard by some audiences.
It seems to me that the distinction is a very important one, but I think that, as a matter of law, the judges are correct because one can always imagine that there could be circumstances in which mocking or angry attacks on certain beliefs could, indeed, make the audience come to feel hatred or contempt for those who hold such beliefs (even Nettle JA acknowledges this possibility). Indeed, even moderate and true statements could inspire hatred in some audiences! This seems like a problem endemic to such legislation.
Issue is not whether X says, for example, "Y-ism is stupid" or "Y-ists are stupid". Issue is whether what X says is likely to make the audience feel hatred, or contempt for Y-ists or to hold them in serious ridicule.
This has to make anyone think twice before engaging in any serious attack on any religion, especially in front of an audience that might be inclined to feel hatred or contempt or feelings of ridicule towards religionists of the kind concerned.
Regarding section 11
Good faith means honestly and conscientiously for the purpose (according to Nettle JA). In a multicultural society, reasonableness is granted to criticism of religion only when something is so ill-informed or misconceived or ignorant or hurtful as to be beyond the bounds of toleration in such a society (per Nettle JA).
This will be a very tough test. That's the good news.
Findings of fact
Tribunal at first instance made numerous mistakes of fact about what was said, although the appeal court was not entirely agreed about what was a mistake and what was not. One that it seems everyone agrees is that it was not stated that Muslims are demons. Rather, a story was told about some demons converting to Islam, according to the Koran. It seems that the judge at first instance got this, at least, totally wrong.
In all, the appeal judgment contains much criticism of the tribunal at first instance, but is pretty inconclusive. Nonetheless, it did show that the Act creates significant barriers.
Conclusions that might be drawn
It appears that a well-resourced and determined defendant can resist such a claim unless its actions are truly outrageous.
But not everyone is so well-resourced and determined.
Genuine discussion of religion in, for example, a scholarly book or a public debate will probably be protected, though it must be engaged in both "reasonably" and "in good faith".
Some disturbing possibilities—e.g. we cannot draw a clear line between criticising a religion (or its doctrines) and criticising its adherents.
Such legislation is almost inevitably murky in its correct interpretation and application, making any case a lottery. It's not even possible to get a clear sense of just what sorts of behaviour are really meant to be targeted.
Tribunal members and judges will have different attitudes, and not all are going to put a priority on freedom of speech.
Apart from what judges think, there is a lot of feeling from academics, government officials and others that such legislation must have "teeth". Many people will be disappointed with the eventual outcomes in Kazak and Catch the Fire Ministries.
We need to be able to criticise religion robustly.
It is unlikely at the moment that this legislation could prevent the distribution in Australia of a book such as The God Delusion or God is Not Great. We don't need to panic. However, it is not clear that that situation will always hold.
May be little that can be done for the moment, but we should maintain our dissent from having such laws and argue for their repeal. Any attempts to amend them to make them more restrictive of free speech criticising religious ideas or religious groups should be monitored and strongly opposed.
The case law does not show a need to panic, but it shows grounds for concern and vigilance.
Free Speech and Hate Speech from Quadrant in January/February 2001.
The appeal judgment in the Catch the Fire Ministries case
The appeal decision in Kazak
Russell Blackford's blog: