Educating bigots
MOIRA RAYNER APRIL 10, 2011
The problem with freedom of speech is that some people broadcast to a willing constituency, and others are effectively silenced. Syndicated columnists have the ear of millions. Unpopular minorities preach to the small ranks of the converted.
The ideal remedy for targets of vilification and incitement to hatred is, surely, to give them the resources, support and opportunities to counter and contradict and ‘speak back’ to the vilifier, in a way that validates their experience and increases their confidence, competence and conversational presence in the community.
This should counteract the disabling, silencing, marginalising and disempowering effect of vilification. It puts the objectively determined facts ¢â‚¬” not a vilifier’s claimed ‘fact’ ¢â‚¬” into the public domain. It demonstrates a public value on refusing to tolerate or embrace discrimination. It begins a different conversation that other listeners may hear and decide is valid. It maintains the conversation.
How might it work? The key element is that the target participates in the response. A few years ago NSW academic Katharine Gelber suggested a range of approaches to reach the same audience as had been affected by the original vilification, such as a local newsletter or the workplace, if that’s where it happened, or a regular TV ‘talkback’ such as the ABC’s Media Watch.
All of these approaches would require an independent statutory office to monitor and determine the seriousness of the vilification, and invite targets to respond.
Only those who could demonstrate that they had been ‘silenced’ by opponents could invoke this remedy: those who could point out that their opponents were more numerous, articulate, better financed, and more easily able to use the media than they were, could claim it.
Gelber says these should be people who inhabited ‘an objective world characterised by inequality, and to norms and values which enact and support discrimination’.
This would rule out bullish campaign groups and overuse by an oversensitive ‘insulted’ person. It need not require the cooperation of the respondent, would involve no punishment, and would encourage more, not less, discussion and debate.
It would be expensive, but the idea of the targets of religious or racial vilification having a prompt and immediate remedy through an independent third party to contradict racial or religious vilification would let victims challenge any ‘silencing effect … and to contradict (with their own speech) the claims raised by hate speakers’.
Public participation would be enhanced ¢â‚¬” rather better than in a court. The truth of the claims made could be contradicted, without the need to prove the speaker was deliberately offensive or motivated by racist prejudice. The relative power of the hate speaker could be challenged
There are a range of possible ways for achieving this. A government official could be responsible for ensuring that targets of vilification had their say and gave them the resources they needed to do so. It could be triggered by application to an existing officer such as (in Victoria) the Commissioner for Equal Opportunity and Human Rights. Or it might be a matter that a court or tribunal could order upon an ex parte (i.e. not involving any other party) application by an aggrieved person.
For example, if there were such a right, Holocaust denier and discredited British ‘historian’ David Irving would not necessarily be prevented from speaking in Australia, but the target group, Jewish people wounded and concerned by the peddling of anti-Semitic misinformation, could counteract his claims by referring to the facts in the public domain.
They would thus reassert the social value of tolerance, and demonstrate through appropriate, equally effective counter information that Irving had already been found, through an exhaustive judicial process (one he instigated himself, in 2000, through defamation action), not to be a ‘historian’ but a partisan propagandist quite reckless with the truth.
This would not prevent serious race hatred and religious propaganda campaigns from being challenged under other, criminal law procedures that would require proof of intention ormens rea ¢â‚¬” and this practical, civil remedy should be equally open to religious groups who are similarly victimised, to correct miscommunication of their views and stifle vilification campaigns.
Nor would it be inconsistent to make amendments to anti discrimination law to enable complainants to seek conciliation and ‘their day in court’ if they would prefer that.
But the recent reporting of the race hatred litigation against a Herald Sun, syndicated columnist shows the limitation of a court-focused, particular plaintiff-led approach.
Criminal laws do not ‘educate’ if they are not used. The relatively new remedies of litigation by victims of racial or religious vilification or incitement to hatred do not educate true bigots, crusaders, propagandists or victims. Criminal laws are rarely used, and then only affect the worst propagandists, rather than the more influential, if often unthinking, views expressed in the home, which children absorb, as they do in their playground, our shops and workplaces, radio and television, and cars.
The problem of conflict based on race or religion will not go away. Australia’s relative success as a pluralist society requires a consistent effort to address it.
At base, establishing the right of reply without demonising the liar or blind pedlar of a muddled world view should be supported by governments of all colours with a comprehensive, long-term, public education program that attracts bipartisan support to address our common fears and misperceptions about the race and religious differences of we, the people.
Moira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.
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