Difficult balance to strike with freedom of speech
Spencer Zifcak | The Australian | November 11, 2011 12:00AM
THE recent debates around free speech and its limits have been both contentious and productive. The contention has centred on whether the Federal Court was correctin finding that Herald Sun journalist Andrew Bolt had engaged in racial discrimination.
The discussion has been productive in drawing attention to the racial vilification provisions of the Commonwealth Racial Discrimination Act and asking whether ornot they constitute too great an incursion on freedom of expression.
Drawing the right line between freedom of speech and its proper limits is complex and difficult. A recent case in Victoria provides a very different but equally vexed example.
In 2009, an article was published in the Australian Macedonian [sic] Weekly. The article was scathingly and inflammatorily critical of the action of past and present Greek governments and their peoples in relation to Macedonia [sic].
Among other things, the article suggested that the Greeks had engaged in genocide, political repression, physical decimation and cultural destruction during the Greek occupation of the country.
The article was particularly damning of the alleged attempt by Greeks to eliminate the Macedonian [sic] language.
These claims formed the background to the article's further consideration of the contemporary naming dispute between Greece and Macedonia[sic]. Greek nationalists, apparently, believe that only Greeks can identify themselves as Macedonian [sic]. The Slavic peoples of the country, naturally, are of the opposite view.
The Australian Macedonian Advisory Council (AMAC) discovered the article. The council is an organisation devoted to preserving and promoting Hellenic civilisation with particular emphasis on the origin, history and culture of Macedonia.
One of its central concerns is to correct, from the Hellenic perspective, what it perceives to be distortions of Macedonian history.
The AMAC complained to the Macedonian [sic] Weekly about the article and demanded a retraction. Having failed in this, the council took the matter to the Victorian Civil and Administrative Tribunal (VCAT).
The tribunal is empowered to determine disputes under Victoria's Racial and Religious Tolerance Act.
The act provides that a person must not engage in conduct that incites hatred or serious contempt, revulsion, or ridicule of another person - on the ground of their race. Race is defined to include national origin.
It would be an understatement to say that the article was written in abusive terms. I don't wish here to inflame the situation further by setting down extensively the terms of that abuse.
By way of summary example, however, Greeks are referred to among other things as "deranged bastardly monsters", "freaks of nature" and "hotheaded, brainwashed nationalists dwelling in the middle ages".
The senior member of VCAT described the piece accurately in my view as an intemperate and hyperbolic rant against past Greek colonisers and present Greek ultra-nationalists.
The question, then, was whether the article as a whole was likely to incite racial hatred against Greeks or in some other way vilify them.
In the tribunal member's view, the question of incitement had to be determined byreference to the audience to whom the article was addressed.
If the audience was reasonably likely to be incited to hatred, revulsion, ridicule or contempt, then an actionable discrimination would have been committed.
The problem was to define the audience. The audience could be considered as theordinary reader of the Macedonian [sic] Weekly. Alternatively it might be considered, more objectively, as being comprised of the ordinary reader in the general community.
The VCAT member decided that the audience should be defined narrowly. That is, the audience should be considered as the ordinary Macedonian [sic] reader of the Macedonian [sic] Weekly.
She based that decision on the fact that most of the Weekly was written in the Macedonian [sic] language, although the article in question had been written in English.
Then came a leap in logic. VCAT determined that because the readers of the Weekly would be likely to share most of the sentiments contained in the article, including its racial prejudices, they would not be stirred to hatred or contempt.
Their prejudice and discrimination would already have been well entrenched.
As the member put it, for the average Macedonian [sic] reader this article was probably just "preaching to the converted". Consequently, the case for incitement had not been made out.
This decision produces a counter intuitive and undesirable consequence. Seemingly, a person may make public statements that are racially hateful and inflammatory so long as those statements are directed to others of a similarly prejudiced predisposition. This takes free speech a step too far.
In defamation law a person will be libelled no matter to whom that libel is published. The same should be true of publications that collectively vilify the people of any race.
The gravity of that offence, and the harm caused by it, should not be diminished simply because the author's statements are directed principally towards his other compatriots.
Some commentators in these pages have suggested that the commonwealth law underwhich action was taken against Andrew Bolt should now be reformed so as to reflect the Victorian position.
To justify the legal restriction of freedom of expression, the vilification of a people on the grounds of their race should be so severe as to incite hatred or serious contempt of them.
It's a reasonable suggestion. But as the Macedonian [sic] case illustrates, it's unlikely to see the end of debates about free speech and its justifiable limits. Just as restrictions on speech can be too great, the latitude given toit can extend too widely.
SpencerZifcak is Allan Myers professor of law at the AustralianCatholic Universityand president of Liberty Victoria.
http://www.theaustralian.com.au/business/legal-affairs/difficult-balance-to-strike-with-freedom-of-speech/story-e6frg97x-1226191630560
