It has been said before that legislating against hurt feelings is ridiculous. It is. But where has this notion – that hurt feelings based on race and ethnicity are worse than any other, or of a quality that demands special protection and compensation – come from? And when did the cause of this malady, this new-fashioned ‘hate-speech’, become the halitosis of community discourse —where no-one seems to know they have the problem, but fellow citizens, at least those sure of their own immaculate oral hygiene, turn away in disgust.
I think “hate speech” is just another product of the golden-age of offence-taking semantics, replete with neologisms and redefinition of some old favourites. Take a bow Julia Gillard, whose lasting contribution to public life will, of course, have nothing to do with her disastrous prime-ministership and all to do with the redefining of misogyny as sexism. And not since Carl Linnaeus, the great Swedish taxonomist of the eighteenth century have we seen such excitement about the combining of Greek and Latin roots to create new species of hitherto nameless dreads such as homophobia, transphobia and Islamophobia. They are absolutely everywhere nowadays, hiding in plain sight in households not so much like your own, but just like your neighbour’s.
Hate-speech was previously something only heard at white-supremacist rallies. It is now a favourite pastime of bored suburbanites, probably those forced to drink at home, lest they glass each other with broken bottles of New Zealand sauvignon blanc at Kings Cross restaurants after 3 am.
Dr Craig Emerson, ex-Labor government minister and amateur chanteur, once ridiculed the idea of hate-speakers lurking in the suburbs (in their “lounge rooms” no less):
“Legislators who make and repeal laws do so where there is an identified problem they consider needs addressing. What is the problem that repeal of section 18C will remedy or at least ameliorate? Who are the punters, cowering in their lounge rooms, repressed by a law that stops them publicly giving a gobful of racial abuse to indigenous Australians and ethnic minorities?” (The Australian 5/4/14)
But, a feeling in his waters must have told him those gobby punters were real, and cacophonous little beggars to boot:
“@bairdjulia Ah, the joys of free speech. Just wait till 18C is amended – it’ll be a cacophony of racial abuse” (@DrCraigEmerson, twitter 2016)
Dr Emerson has a PhD but it seems not everyone with a university education is immune from committing hate-speech. Nor does being social media savvy spare bright young things from the consequences of failing to divine the hate-speech-horrors that lurk in their little hearts of darkness. The notorious Queensland University of Technology 18C case, still before the courts, involves a claim for $250,000 worth of hate-speech hurt. But forgetting the students for a moment, imagine the vicarious trauma of the officers of the Court who have had to listen to filth like this:
“Just got kicked out of the unsigned indigenous computer room. QUT stopping segregation with segregation?”
And wade through ordure like this:
“I wonder where the white supremacist computer lab is.”
I, for one, am happy to unselfishly recommend compulsory tax-payer funded psychotherapy to ferret-out the unconscious hatred hidden in the psyches of these young leaders of tomorrow. Sure, there is money to be made, but think of all the good that will come of it.
I’ve discovered two types of this new-fashioned “hate speech”: The first is the vulgar-abuse type, favoured by rednecks and yobs. Nice people like Quadrant readers don’t actually personally know any of these snarling spittle-flecked racists, but may have inadvertently seen a Youtube clip of a hyperventilating piece of poor white trash screaming at a Muslim woman on a train. This is your archetypal ‘A Current Affair’ hate spruiker – Mrs Hate, if you will – an overweight, edentulous, thirty-something mum, the sort Martin King would fearlessly confront – with her trolley full of groceries and three kids hanging off the side in the Woolies car park. Be warned, if you oppose 18C you clearly think it is OK; nay, you secretly relish the possibility of unleashing legions of Mrs Hates, and all their tattooed, car-mag reading defactos to racially vilify our innocent brown-skinned brothers and sisters. Why public transport is the preferred staging ground for these shenanigans I have no idea. It may have something to do with Jeremy Clarkson’s infamous quip about public transport being for poor people. In which case, it is at least an economic problem as much as a cultural one.
The second sort of ‘hate speech’’ is done by clever dicks, like Andrew Bolt. This is shaming speech that, by definition, never occurs on public transport, or out the window of an HDT commodore, but by cunning word-smithery. It is an especially virulent form of speech that causes compensable psychological injury. Sadly, the originator of the hate-speech (the hate-speaker) may not even know they were the hating sort until it is revealed to them by a judge. I guess it must be something like being diagnosed with lung cancer when you don’t even smoke: “Well, I believe you my friend, but I’m afraid the X-rays don’t lie.”
Now it goes without saying that hate-speech must be banned. Banning things is very popular in Australian politics – think live-animal exports, greyhound racing and late night alcohol consumption. Politicians bent on banning something nasty like hate-speech usually rely on two types of information:
1. A report from a panel that mental illness and suicide rates are high in the group exposed to the hateful behaviour and
2. A touching anecdote or two
The problem with the first is that suicide rates are unbearably high in any group or demographic that is the subject of a discussion about suicide or the subject of a sentence, starting “Suicide rates are…’. For instance, it is well known that depression and suicide rates are very high amongst older, particularly widowed, men. So let’s have no more nasty talk about pensions, lest we find grandad with his head in the oven again. “Not to worry son, just keeping warm. They say we won’t be able to afford the heating bills if Mr Morrison has his way.”
Politicians love to discover suicide. Bill Shorten did just that in the SSM plebiscite debate:
“Let me be as blunt as possible: a ‘no’ campaign would be an emotional torment for gay teenagers, and if one child commits suicide over the plebiscite, then that is one too many.”
Substitute “hate-speech” into this sentence and the game is up for the 18C reform. But curiously, the same thought experiment doesn’t work for greyhound owners and trainers. Imagine Mike Baird:
“Let me be as blunt as possible: a few people in the industry may commit suicide because their incomes, their families and livelihoods are ruined by this ban, but in the end, it’s a fair price to save those adorable skinny dogs.”
The problem with the anecdotal platform, the sad stories of hurt and humiliation told to the local MP to lift the mood at a sausage-sizzle fund raiser, is that if allowed to influence public policy, no-one will be allowed to leave their home. Or stay in their home for that matter because of the awful stories about things that have happened to perfectly undeserving folks minding their own businesses with a TV dinner on their laps.
But why pick race and ethnicity for special protection from shaming speech? Easy, that’s because it is sacrosanct; a core, immutable, defining personal characteristic. That makes racial abuse quite different, from, say, fungus growing under enormous sweaty rolls of breast-fat, or being pig-ugly, or cripplingly socially maladroit, or retarded, or repulsively needy, or constantly and hideously angry without knowing why. You see, these things are purely decorative, lazy affectations, and deserve no protection from shaming speech. These idiots and malodourous misfits just need to suck-it-up. “Chalk it up to the price of privilege my good fellow.”
Beyond Blue helped advertise the link between skin colour and shame with its brilliant anti hate-speech ad: “No one should be made to feel like crap, just for being who they are.” Naturally ‘who they are’ is their race – there was an accompanying picture of a few obviously non-Anglo people to help us along. They’ve got a limited ad budget no-doubt, but it’s curious that they didn’t consider other aspects of identity or ‘who they are’ to warn us to steer clear of. This is the ‘we can see it, so we’ll say it’s the cause’ approach to problem solving. It’s like the tendency to diagnose irritable babies with colic (now ‘gastro-oesophageal reflux’) because feeding, vomiting and pooing are pretty much all babies do. Just like trying to cope with white-people’s reactions to their colour is pretty much all indigenous people do. You know how it is.
Part of the reason for the narrow focus on race is that, from time to time, you can tell racial and ethnic identification by the colour of people’s skin or by their quaint ethnic attire. But other personal, ‘who they are’, attributes are more difficult to attack with the lancinating wit of the hate speaker. For instance, to properly abuse homosexual people on the basis of their core identities (what they do in the bedroom) you often need to ask a few questions, which is difficult from the back of a passing ute. The Doppler effect ruins the atmospherics: “canIjustcheckifyouarequeer, oh you are, then get out of town you poooofff.” And establishing the credentials of an intersex or transsexual individual for some recreational humiliation is a nightmare, because Latinate compound, gender-slagging epithets tend to lose their potency, especially from a passing ute.
Even harder, is establishing the neurocognitive profile of someone on the milder end of the Autistic Spectrum (the old-fashioned Asperger’s Syndrome) for some diverting hatefulness and shaming of their vague weirdness, their inability to keep friends and jobs, find lovers and so forth. You have to start with school reports, then some neuropsychological testing…It’s all too hard. Let’s go for the low hanging fruit of melanin pigment instead.
Psychological injury by shaming people ‘for who they are’ is so much more common and more injurious in everyday life than it is in Andrew Bolt’s columns. For instance, how many more suicides have occurred because a relationship ended in rejection of someone’s core personhood. What compensation, for example, for an unemployed middle-aged man with high cholesterol and a bad back, whose wife leaves because he doesn’t talk; because his only interest is buying parts for his 4WD and his only social skill is ‘mansplaining’ diffs and air filters and his unfashionable views on same-sex marriage and immigration. The luvvies of the left would hate him (coz he reminds them of dad, but that’s another story) and would hurt and shame him if he lifted his thick ugly head above the barricades. Poor bugger – shamed and humiliated for ‘who he is’. But he can just suck-it-up, and watch ABC TV by himself until the strangled blood flow through his sclerotic coronaries finally stops. ABC TV will help that along.
But, to extend our homely example, let’s suppose that, before he dies, this pallid, coronary-in-waiting bigot manages to tell his newly ‘out’ bisexual daughter that she disgusts him and that she must leave home. As day follows night, she adds two more cuts and one cigarette burn to her forearm. Hurt, humiliated and injured she most certainly is. If only racial vilification were an option for this slob. Because use it, he most surely would and then we could pack him off to Commissioner Tim’s office for some counselling. Regrettably, sending his daughter on the inexorable path to becoming a writer for New Matilda is not the crime it should be.
Compensation for psychological injury does, of course, happen in other areas of the law. And everywhere it is vexed by the vagaries of psychological causality and pre-existing vulnerability. Pre-existing vulnerability is thought to explain why some people develop debilitating PTSD from trivial traumas and why some people are off work for years because of bullying that didn’t really happen – at least in the way most people understand it. For instance, if I catastrophically traumatise someone by standing on their toe, not knowing that they were dangled by their toes in the garden shed by their wicked stepmother until they were 25, no-one would suggest that my punishment should take account of my victim’s inability to return to work for the next 10 years. The pre-existing trauma was unknown to me and I hope to be judged, if judged I must be, on my instance of clumsiness only.
However, the new offence of hate-speech is only tenable if the pre-existing vulnerability is assumed to be present whether that is the case or not and whether it is known to the hate-speaker or not. The insult may be modest or slight or personally irrelevant, but that counts for nothing when the simple act of racial self-identification brings with it a cache of race memory or group hurt that makes escalating an insult to a catastrophe a fait accompli. This remedy is not available to other deserving groups. An equivalent example might be the making of a cruel remark about someone who has suffered sexual abuse: “Most people who have been sexually abused really wanted it.” For starters, it’s not hate-speech, though it certainly should be if there is any consistency in this process. However, the plaintiff in the ensuing fictional hate-speech trial is not able to claim membership of a group with an assumed, fixed, immutable collection of experiences just by self-identifying as an abused person, even though this group is likely to be at least as, and probably more, homogenous as any racial group where the matter of psychological symptoms of trauma is the issue.
This is pretty weird stuff and not an academic exercise either. The QUT 18C incident occurred in 2013 and is still unresolved. $250,000 is the price tag quoted in the papers. Some of the descriptions of the alleged hate-speech are alarmingly trivial, but that doesn’t matter because they relate to a peculiar personal characteristic that is historically privileged (in the sense of it being inextricably bound to collective vulnerability and hurt). Whom amongst us could survive 3 years of public litigation, let alone the threat of a big fine at the end of it all. And who could possible heal from a psychological injury, regardless of the cause, in these circumstances. You don’t need to be a psychiatrist to guess that in most cases it would make the clinical course much worse.
Ultimately 18C and the new-fashioned hate-speech proscriptions are cack-handed attempts to stop people speaking their minds, even if what they have to say is unpleasant. 18C is predicated on selecting a vague biological but mostly psychosocial construct called ‘race’ to privilege certain people against others. It ignores many other personal characteristics that represent collective vulnerability at least as well – older people, victims of sexual abuse to name a few. It has already demonstrated alarming weaknesses – the Bolt case, and now the QUT case.
Sadly, certain sections of the community will never agree to repeal or even modify 18C because to them it is about righting historical wrongs using individuals as pawns. They want symbolic struggles and their misplaced guilt paid for by university students.
“Oh, but there are legal tests, you privileged so and so. And don’t forget section 18D, (the ‘yes, but’ provisions). They’ll sort it all out,” is the usual retort. To that, I add but one suburban-faced sally: “No-one who thinks that the barbs of unpleasant speech can be apprehended with any fidelity has ever lived in a family, had a friend, been married, had kids or played sport. Except for politicians, for whom these same barbs are just pointy-headed opportunities”