Responding to my article in the Australian a couple of weeks ago*, Professor Davidson accused me of “confusing speech, theft and violence” through identifying the exceptions of fraud, defamation and incitement to freedom of speech (which, contrary to Professor Davidson’s allegation, were not the only three exceptions that I could name—merely the three that I chose to use). To explain why this is not the case, I’ll very briefly go through Professor Davidson’s arguments on these three offences:
Defamation can be classed as “theft of reputation” only in a loose sense of the word “theft”. Technically, “theft” occurs when some property is physically taken and carried away. Defamation harms someone’s reputation. Reputation may arguably be a form of property, but not in the traditional sense—I cannot sell you my reputation. If you spread lies which damage my reputation, you have breached my rights and caused me harm, but you have not “stolen” anything from me. Restricting defamation protects peoples’ right to be treated as they are, rather than according to malicious falsehoods that would damage their livelihoods. It does not protect property, but, in order to prevent a greater harm, it does restrict free speech.
On the other hand, fraud is theft. If I pretend to be a building contractor, you hire me for a job and pay me, then I disappear and you discover that I have never been on a construction site in my life, I have taken and carried away your property. However, that was a contractual violation. You handed your money over in the first place. You did not have to believe me, and you could have avoided making the contract through taking simple precautions like checking-up on me to see if my story was true. I have breached our contract by not doing the work, but breach of contract is not a criminal offence. Nevertheless, I would be jailed. Why?
By being punished for fraud, I am not being punished just for breaching the contract, but for lying to you in order to take your properly unfairly. But for my initial words, all I would need to do is hand your money back for violating the contract. With my words, I go to prison. Restricting fraud protects property rights, but restricts free speech.
Lastly, incitement to violence is not “just violence”. If I incite someone else to commit violence, that person still has to voluntarily commit the violence separate from me. Their actions may well be causally linked to my words—in that, had I not said the words, they would never have been violent—but I did not compel them to be violent. The actual violent act was committed by them, not by me. I merely gave them the motive. Restricting incitement to violence reduces violence and protects peoples’ right to not be attacked, but it also restricts free speech.
Restricting hate speech is really no different, qualitatively speaking, from these other examples.
“Race” is a very loaded term, but what it refers to in this context is essentially a social group to which individuals are assigned. Racism reduces individuals to a particular category and judges them accordingly. So, for example, black people who have never committed a crime in their lives may be treated as criminals for no reason other than having been born black. People born overseas may be excluded from work for no reason other than their having not been born in Australia. People with Indigenous heritage may be threatened, steered away from housing, or denied service in retail establishments because of various negative stereotypes. And so on and so forth.
Contrary to Professor Davidson’s claim, restricting racial vilification does not “create special privileges for race-based or ethnic-based minorities”. In fact, it defends the right of all individuals to be treated as individuals and not suffer abuse based on arbitrary factors beyond their control. It is, in fact, very close to defamation law. Defamation damages the reputation of an individual; racial vilification damages the reputation—and often the material well-being –of all individuals meeting a particular description. It also amounts to incitement to discrimination among the general population, and abuse and intimidation towards its victims.
The right of racists to speak freely clashes with the rights of the victims of racism to individuality and human dignity. From my perspective, between hateful bigots making peoples’ lives harder and innocent people trying to live their lives as normal individuals, it is clear whose rights should prevail. This is the same trade-off made in the laws of defamation, fraud and incitement. We limit the free-speech rights of malicious liars to protect the rights of their innocent victims.
There are other debates to be had about how to effectively sanction hate speech, whether and to what extent the government has overreached, the appropriate role of civil society, etc. But I would hope that we can all at least agree that telling the victims to just “suck it up and move on” is not the appropriate response.
* I have been overseas for the past couple of weeks and couldn’t respond earlier.