Warning from Australia: don’t legislate against hate
An Australian Muslim says that Victoria's laws against incitement to religious hatred have sown division, and undermined freedom of speech, thought and conscience.
The attempt, for the third time, to pass laws outlawing incitement to religious hatred in the UK has, once again, drawn applause from the usual quarters. It has been welcomed by some on the left who seem to view society as so irredeemably racist that only the state can protect people from each other; and it has the support of Muslims who see the law as a weapon to wield against the miasma of Islamophobia.
However, as is often the case with government attempts at social engineering, the results will not be as expected. Indeed, if the Australian experience is any guide, these laws will undermine the very freedoms they seek to protect, and bring division to the community they seek to unite.
As an Australian Muslim who supported the introduction of such laws, I now live with their unfortunate consequences. Like his Blairite counterparts, the premier of Victoria, Steve Bracks, introduced the legislation amid promises of a new era of ‘tolerance’. Two years later, it’s a strange kind of tolerance when Muslims are suing Christians, witches are suing the Salvation Army, acolytes of Aleister Crowley are suing child psychologists, and faith communities are playing an obscene game of ‘gotcha’.
At the heart of such laws lies the fallacious idea that the state can regulate human emotions. Hatred, we are assured, can be struck from the hearts of men with the stroke of a legislator’s pen. If people can only be prevented from saying hateful things, then hatred will just dissipate. This is, of course, pure fantasy. Governments might criminalise the public expression of hateful ideas, but they cannot ban the ideas themselves.
In fact, ideas draw strength from attempts to silence them. When the state criminalises hateful ideas, it gives them legitimacy. And when religious communities sue their critics, preferring the force of the law over the force of argument, it bolsters the view that the criticisms were valid.
The only way to deal with extremism is to confront and expose the ideas that underpin it. This can only be achieved if those ideas can be expressed, and then exposed, in the public domain.
The law’s advocates frequently link hateful speech to hateful conduct; implying that unless laws are passed, violence against minorities will escalate. However, most people who hate something do not graduate to violence. And were they to make the quantum leap from disliking Muslims to wanting to hurt them, then there already exist ample laws to prevent both the incitement to commit crimes, and the actual crimes themselves.
One can understand why these laws are so attractive to minorities. Nobody likes to hear nasty things said about them or their faith, but the Australian experience shows that laws of this kind cause more problems than they fix. Not least of all to the very religious groups they purport to protect.
The first major case under the Victorian legislation was brought by the Islamic Council of Victoria (ICV) against Catch the Fire Ministries (CTFM), a small evangelical organisation. CTFM had held a seminar in which some nasty things were said about Islam and its adherents. Some Muslims were in attendance, at the suggestion of an employee of the Equal Opportunity Commission of Victoria (the government body that polices the legislation). Understandably, they were outraged by what was said. The ICV then initiated legal action on their behalf.
For an obscure organisation with a controversial message it must have seemed too good to be true. Suddenly, CTFM had an international stage and were on the cusp of martyrdom. The ideas that had so offended the Muslims were being aired and discussed on radio, television and in print. Their audience had grown exponentially as had their importance to the public debate. Indeed, so far reaching was the interest in the case that the Australian Department of Foreign Affairs took the extraordinary step of requesting updates from the judge, so as to allow Australia’s embassy in Washington to respond to correspondence from concerned American Christians. The case had transformed a couple of evangelicals into suburban Joan of Arcs being burnt on the pyre of political correctness.
The effects of the suit were felt across the community. Small teams of Christians, armed with notepads and tape recorders, began attending Islamic lectures, recording possible transgressions that might be used as evidence in the case. Islamic bookstores were mined for nuggets of intolerance. True to its promise, the law had brought Christians and Muslims together like never before.
The court case dragged on for months as the judge listened to complex theological evidence tendered by both sides. Arguments flew back and forth about the nuances of Arabic grammar, the interpretation of various verses of the Koran, the requisite qualifications for Islamic scholarship, and the relative legitimacy of different schools of Islamic jurisprudence. Nobody, it seemed, noticed the inappropriateness of a secular court, more accustomed to matters of trade practices disputes and parking fines, presiding over a case centering on contentious theological arguments.
The judge ruled in favour of the Islamic Council, finding, among other things, that the Christian pastors had mocked Islam and not discussed the religion in ‘good faith’. The remedy was to order the two ministers to apologise by way of a court-defined statement on their website, the ministry newsletter, and by taking out four large advertisements in Victoria’s two daily newspapers. It wasn’t enough that they apologise to the individuals they offended or even the Muslim community, but rather they had to apologise to the entire society. In addition, they were ordered never to utter or publish the offending comments in public again in any Australian state or on the internet.
They refused to comply, insisting they would rather go to jail.
Recent media reports place the legal costs for this Pyrrhic victory at over $1million. With CTFM having filed an appeal with the Supreme Court, this expense will only mount. As will the emotions.
While the UK considers the passage of such laws, Australian states cannot drop the issue fast enough. After observing the Victorian experience, then Labor Premier of New South Wales, Bob Carr, promised to fight their introduction in his state. Speaking before parliament, Carr warned: ‘The Victorian experience spells out how anti-religious vilification can be misused…. [These] laws can undermine the very freedom they seek to protect – freedom of thought, conscience and belief.’
He has a point. If public speech is constrained to only that which doesn’t offend, then it interferes with the religious freedoms of all citizens. While the secular proponents of this law envision some sort of syncretic utopia, it is a strange religion indeed that proclaims its truth without decrying the falsehood of other faiths. For the true believer, there is nothing outside his faith except misguidance. The right to offend is therefore as intrinsic to religion as the right to evangelise.
Unlike race, a man can change his religion. It is, after all, simply a collection of deeply-held ideas about the world and how one conducts one’s affairs. As a matter of choice, not nature, it does not deserve or require the same legal protections as race or gender. If our claim to pluralism means anything, it must mean a willingness to allow all ideologies – however strange or repulsive – to compete in the free market of ideas. The defective idea will be quickly rejected, with only ideas of substance remaining competitive.
Religion is an abstract concept. This causes issues in a secular state that cannot hold an opinion as to the spiritual legitimacy of a faith. A witch, for example, is therefore entitled to the same protection from vilification as a Christian or Jew. In fact, it is not inconceivable that, with a few constitutional adjustments, even the British National Party in the UK might morph into a ‘religion’ of sorts, thereby entitled to protection under the religious hatred law.
It’s an ambiguity that hasn’t been lost on everyone. Convicted paedophile Robin Fletcher, currently serving time in a Victorian prison for drugging, raping and forcing into prostitution two 15-year-old girls, used the legislation to drag both the Salvation Army and the prison authorities to court. By supposedly linking witchcraft with ‘Satanism’ during an introductory course on Christianity, the Army was alleged to have violated Fletcher’s right to protection from religious hatred. The judge hearing the case ultimately dismissed it, but pointed out in his closing statements that the law needed reform so as to reduce its use in vexatious and frivolous lawsuits.
Catholics might soon sue those citizens of Sussex, England, who retain the tradition of burning an effigy of the Pope on Guy Fawkes’ Day. Anyone who sings ‘Remember, Remember’ is certainly fair game, particularly if they sing it to completion (‘Burn his body from his head, Then we’ll say ol’ Pope is dead, Hip hip hoorah!’). And for Scientologists, angry at mocking media coverage of Tom Cruise’s recent antics, the law might give critics of the ‘Church’ the ‘auditing’ they deserve. With hundreds of thousands of registered adherents to the Jedi religion around the world, could a bad review of the latest Star Wars film be construed as inciting religious hatred? The opportunities for state-enforced tolerance are limited only by one’s imagination and sense of pettiness.
Religious hatred laws are also a useful tool for cults wishing to stifle debate or hinder exposure. In Australia, followers of Aleister Crowley’s Ordo Templi Orientis have already initiated a lawsuit against a prominent child psychologist. Dr Reina Michaelson, a former Australian of the Year, had the temerity to quote from the group’s own Book of Law as evidence linking the group with the ritual abuse of children. Currently overseas working with victims of the Asian tsunami, she must now return to Australia to defend herself in the courts.
However, there is one case that captures the sheer ridiculousness of laws against religious hatred. Enter Ms Oliva Watts: former policeman, transsexual naturopath, and witch. In March 2003, Ms Watts decided to run for local government in the City of Casey, a community distinguished by its proliferation of Pentecostal churches. The possibility of a transsexual witch entering local government in this most Christian of communities provoked a fierce reaction. A day of prayer was called to protect the city, and councillor Rob Wilson issued a press release suggesting that a witch in the council might be a ‘concern’ for some residents of the area.
Understandably, Watts was offended. And to whom do disgruntled transsexual naturopath-witches turn for justice? The Equal Opportunity Commission, of course. It wasn’t long before Ms Watts had Wilson hauled before the courts on charges of inciting hatred against witches.
At a time when everyone has a group to protect their ‘identity rights’, witches are no exception. So into the fray stepped the Pagan Awareness Network (PAN). Fuelled by a $400 donation from the Witches Voice in America (‘NeoPagan News/Networking on the net since 1997’), PAN ran a fierce campaign: sending fire-and-brimstone letters to both the premier and attorney general of Victoria; rallying witches across the world; and publishing pamphlets rebuking the councillor for his wiccaphobia. Watts joined the Wiccan PR blitz. ‘I have never in my life done any offensive piece of magic, a curse, a hex’, she assured the Age newspaper. ‘It would be inconsistent with my beliefs.’
As the trouble brewed, the attorney general moved quickly to clarify his government’s position. ‘We [the government] govern for all Victorians – and that includes witches, magicians and sorcerers’, he declared.
Faced with the indefatigable forces of PAN and growing legal fees, councillor Wilson conceded defeat, entering an out-of-court settlement. As part of that, he was required to offer a public mea culpa, ‘for any hurt felt by Ms Watts’.
By this time, Wilson had already accumulated a legal bill of $130,000 for the 14-month battle, and, adding insult to injury, the City of Casey faced an increase in its 2005 insurance premium as a result of the litigation.
It would all make a great joke, were it not now illegal to tell it.
Amir Butler is executive director of the Australian Muslim Public Affairs Committee, and has written on religious hatred laws for the Age.
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