The media has made much of the jihadist assault on the French satirical magazine Charlie Hebdo as an assault on “freedom of speech”, and the “Je Suis Charlie” (“I am Charlie”) theme, as a protest, continues this. Thus the Editorial of The Weekend Australian (January 10-11, 2015, p.23) has the theme of an “Endarkenment”, meaning that the attack was motivated by the opposite values of the Enlightenment.
Regardless of whether the attack was a “false flag” or not, there is a substantial issue raised here about free speech. Presumably one should be free to criticise and satire jihadists and fundamentalist Islam through cartoons which do offend and insult this Faith in some form. However in Australia and right across Europe there are severe restrictions on free speech.
In 2006 Britain almost criminalised the denigration of Islam by incorporating incitement to religious hatred in the Anti-Terrorism, Crime and Security Act (2001) and the Serious Organised Crime and Police Act. The Racial and Religious Hatred Act was defeated in the House of Commons, but only by a narrow margin. Yet in Victoria we have the Racial and religious Tolerance Act (2001) which arguably could be used against any Australian version of Charlie Hebdo. Even so, in Britain, the existing racial hatred laws and the anti-discrimination machinery was used to lead to substantial fines to an offending solicitor , who said in a one-to-one conversation to her receptionist, who was of a particular religion, that she couldn’t stand people of that particular religion. In other words, anything short of universal love and glowing expressions of this could get one in trouble with “the Law”.
France has gone further than Britain in forbidding even “private” acts of defamation, insult and incitement on the basis of religion, race, ethnicity, nationality, disability, sex and sexual orientation. If one day telepathy becomes possible, as these laws assume that all white French are “racists”, much of France could be made into a final goal. This would give a whole new meaning to “thought crime”.
So how would Charlie Hebdo go under Section 18C (1) of the Racial Discrimination Act 1975? This section states that it is unlawful for a person, other than in private, to do an act if the act is (1) reasonably likely in all the circumstances to offend, insult or intimidate another person or group of people and (2) the act is done because of race, colour or national or ethnic origin of the other person or some or all of the people in the group.
This sub-section seems at first glance to rule out religious-based grievances, but a constitutional law expert quoted in The Australian January 15, 2015, pp.1,2, disagrees: “If you vilify people who you can justly characterise as having s racial characteristic, and that group of people disproportionately belong to a particular religion, then you would be vilifying that race”. Further we should note that almost any criticism or critique could be taken by some aggrieved party as being offensive and the bar is set so low here that it is almost impossible not to have an aggrieved party.
Section 18D of the Act offers a defence of sorts, requiring publications to be undertaken reasonably and in good faith. The problem is that when it counts section 18D is not likely to offer such a defence. Material which is satirical like the cartoons from Charlie Hebdo strongly provokes and it is likely that the court will not see this act as being in good faith. More on that point in conclusion.
Greg Taylor in “Casting the Net Too Widely: Racial Hatred on the Internet”, “Criminal Law Journal” volume 25, 2001, pp.260-275, made the insightful comment that the international law principle of comity, recognition of the laws of another jurisdiction, could mean that a race-hate offence may reach beyond the borders of a jurisdiction (say Germany or Australia) to apply to material placed on the internet no matter what jurisdiction. This leads to the hypothetical of someone in the United States, protected by the First Amendment, being prosecuted in absentia by a French, German or even Australian court.
The Human Rights Commissioner, Tim Wilson, in “Charlie Hebdo v 18C: No Contest” The Australian January 19, 2015 p.10, says in his article that: “The assumption behind the law (i.e., race hate) is that racism essentially comes from the dominant racial group against minorities. That isn’t the case. Sometimes minorities judge each other horribly and harshly”. He cites the example of a leading Aboriginal who said Aboriginality and the “choice” of homosexuality were incompatible on the basis of “Aboriginal Law”. Wilson said that he did not criticise this person because of section 18C: his heritage may be offended and section 18D may not have offered a defence.
Wilson concluded thus: “18C gives a legal privilege to some to be bigots while we allow the law to intimidate others into self-censorship who want to respond”. This is true, but there is an even deeper objection to section 18C in all of this. It legislates that no criticism at all can be technically made of basically non-Anglo groups because any criticism can be construed to be in some way ethno-racially based and any criticism at all can at least be viewed by some aggrieved individual as offensive and insulting. A court may not at the end of the day rule in favour of the individual offended, but the discriminatory machinery would have been set in motion.
Hence the endarkenment is already in the West, and certainly in Australia. Technically we have no free speech at all because we have no free speech on crucial issues which decide the survival of our race and civilisation. That is, indeed, a most bitter pill to swallow. But we need to recognise this and understand the wider significance of this, which other writers at this site tirelessly detail.