Dispatches from the Creation Wars

Australian Free Speech Problems

It looks like Australia has a similar situation to Germany and many of our other allies when it comes to laws against criticizing religions, at least in one province. Victoria has something called the Racial and Religious Tolerance Act that prohibits “inciting hatred against a person or class of persons”, and that act has been used to prosecute two Christian ministers who criticized Islam at a seminar a couple years ago.

In December 2004, VCAT judge Michael Higgins ruled that Nalliah and Scot had incited “hatred against, serious contempt for, or revulsion or severe ridicule of” Muslims, both at the seminar and in articles published in a Catch the Fire newsletter and on the Internet.

Scot’s address to the seminar, he said, was “essentially hostile, demeaning and derogatory of all Muslim people, their god, Allah, the prophet Mohammed and in general Muslim religious beliefs and practices.”

And an article by Nalliah in his ministry’s newsletter had included statements “likely to incite a feeling of hatred towards Muslims,” the judge said.

In June 2005, Higgins ordered that the two apologize by publishing a prescribed statement in newspapers and on the Catch the Fire website.

They were also instructed to pledge never to repeat the comments which he deemed offensive — or any other comments that would have same effect — anywhere in Australia or on the Internet.

Higgins said if they did not comply, “further orders” would be made.

The court ordered them to take out ads in newspapers costing nearly $70,000 to issue a public apology. That decision is now under appeal and arguments were heard this week by the Victoria Court of Appeal. Said their attorney:

Mr Macaulay said orders by Judge Michael Higgins against the pastors to take out a newspaper advertisement apologising and not to repeat certain teachings were too wide, and beyond his powers under the act.

He said it was surprising that the pastors could hold the beliefs but not express them. “They are restrained by law from suggesting or implying a number of things about what in their view the Koran teaches: that it preaches violence and killing, that women are of little value, that the God of Islam, Allah, is not merciful, that there is a practice of ‘silent jihad’ for spreading Islam, or that the Koran says Allah will remit the sins of martyrs.

You can view the defendants’ reply brief to the court here. It includes much of the substance of their criticisms of Islam, which I think anyone will agree are not the least bit beyond the pale (one can agree or disagree with them, of course, but they are pretty much standard religious criticism). The reply brief also makes an extremely important point about the difference between racial and religious tolerance. Religions are belief systems and belief systems must be open to analysis and criticism, whereas race does not imply any set of ideas.

This is extremely dangerous legislation and it is becoming more and more popular among our Western allies. It is one thing to prohibit someone from encouraging the murder of an individual or a group; it is quite another to argue, as the government of Victoria did in this case, that you cannot criticize a religion without vilifying its adherents. No government has the legitimate authority to rule on such matters. There is no way to coherently and consistently apply such a law without banning all criticism of anyone’s religion. The flipside of having the freedom to practice one’s religion and express it openly is that others also get to criticize your beliefs – and yes, even criticize you for holding them.

Comments

  1. #1 JS
    August 23, 2006

    Your last link is broken.

    – JS

  2. #2 Andrew_Wyatt
    August 23, 2006

    Thanks for continuing to highlight these examples of speech curtailment in the rest of the “enlightened West,” Ed. Every time I start to get cynical about our government, you provide a bucket of ice water. Betwen the hate speech laws and rulings you highlight and the journalism restrictions that Greg Palast bemoans, I’m reminded of why America is still the Land of Free (relatively speaking).

    I often wonder why countries such as Britain, Canada, and Australia in particular–who share our common law traditions–have such a dim view of freedom of speech.

  3. #3 Ed Brayton
    August 23, 2006

    Let me reiterate that when I write things like this, it has nothing at all to do with wanting to make the US look good. I am totally immune to feelings of patriotism. Free speech is something I feel very strongly about and I am disappointed in other Western democracies who do not provide adequate protection even for opinions that I find appalling (such as anti-gay speech). There are other areas, however, where many of these same countries are well ahead of us. Gay rights is an obvious example. Most of Europe appears to be far less concerned about the sex lives of others than Americans are and far more open to equal rights for gays. I am not the least bit interested in trying to say “our country is better than your country.” I am interested in standing up for the principles I believe in, and I will praise my country or any other when they live up to those principles, and I will criticize my country or any other when they do not.

  4. #4 Skemono
    August 23, 2006

    They are restrained by law from suggesting or implying a number of things about what in their view the Koran teaches: that it preaches violence and killing, that women are of little value, that the God of Islam, Allah, is not merciful, that there is a practice of ‘silent jihad’ for spreading Islam, or that the Koran says Allah will remit the sins of martyrs.

    In other words, it’s just like Christianity?

  5. #5 Raging Bee
    August 23, 2006

    A Victorian Islamic body, which covertly sent members to monitor the event, subsequently brought a complaint under the newly implemented Racial and Religious Tolerance Act, claiming the seminar had incited “fear and hatred” against Muslims.

    Why couldn’t the Muslims have organized their own seminar to clear up any misunderstandings about what Islam is about?

    Now let’s see if Muslim clerics get prosecuted for saying bad things about Christians or Jews. (Any madrassas in Australia? Maybe the government should look into their curricula.)

  6. #6 Gretchen
    August 23, 2006

    This is why I am really starting to hate the word “hate.” It has become a code word for any strongly negative expressions of opinion that offend people, and slapping that label on it makes it harder to defend as free speech. After all, why would you want to support hatred?

  7. #7 Greg Byshenk
    August 23, 2006

    Mostly out of curiosity, is there a link somewhere to the actual decision, and perhaps to
    the arguments of the plaintiffs? From what I can see, it is difficult to present even informed
    comment based on the information available.

  8. #8 Ted
    August 23, 2006

    is there a link somewhere to the actual decision, and perhaps to the arguments of the plaintiffs?

    One ruling is here.

    If that doesn’t work search on “islamic” at the search page.
    and

    http://www.religionlaw.co.uk/interausae.pdf

  9. #9 Raging Bee
    August 24, 2006

    Ted: Thanks for the links.

    I haven’t read the whole thing, but from what I read so far, it looks as if this law can be used to punish ANYONE who says ANYTHING less-than-fawning about another’s religion (or about Islam at least — has anyone been prosecuted for insulting Christians or Jews?). And the courts get to decide on their own how broadly or narrowly they will interpret the prohibitions, and how broadly or narrowly they will interpret the exceptions to said prohibitions. If something you say about Islam is alleged (by the “right” or “representative” Muslims) to cause any harm, like persuading a near-convert to back off, then it’s actionable.

    And don’t even get me started on how the courts are to determine whether a complainant has standing to file a motion on behalf if his/her religion. This sounds like the biggest organization of a given religion are seen as “representing” that religion. (What if the respondent is of the same religion? What if there’s another organization that interprets their religion’s holy text differently?)

    “The Act will prohibit extreme conduct which promotes and urges the strongest feelings of revulsion, hatred or dislike of a person or group on the ground of the racial background or religious beliefs and practices of that person or group.

    So if I describe an act of female genital mutilation in a Muslim country, or the bloody aftermath of a terrorist act explicitly committed in the name of Islam, and it makes someone else puke, then I’m the one to be punished?

    Fuck Australia. You can’t have laws like this and still pretend you’re a land of rugged vivacious tough-but-good-hearted frontiersmen.

    PS: Wait a minute — half of the actual offensive statements are quotations of the Qu’ran, with some added commentary by…a Muslim! What does this say about the substance of the complaint?

  10. #10 Prup aka Jim Benton
    August 24, 2006

    Thanks, Ed, for finally giving me the words to express an idea I’ve been grasping towards. There IS an important distinction between the type of ‘hate speech’ that governments like Germany were trying to prevent by their rules, specifically neo-Nazi anti-Semitism, and the type of ‘hate speech’ that governments like Australia and Canada are trying to prevent.

    To the Nazis, “Jewish evil” is inherent/’racial’/genetic. It doesn’t matter if a Jew has converted to Christianity, or is secular or a total atheist. Because he was ‘born Jewish’ he is supposedly evil by nature. This is a good deal different from criticizing the Jewish religion, or condemning them as ‘Christ-killers’ or, for that matter, criticizing Israeli foreign policy and the treatment of the Palestinians. (True, many anti-Semites don’t make such fine distinctions. They are capable of switching from one to the other freely.)

    But this distinction should be kept in mind. There is a positive difference between laws like that under which David Irving was prosecuted — however you feel about them –and laws like the ones you mention here.

  11. #11 Ted
    August 24, 2006

    And don’t even get me started on how the courts are to determine whether a complainant has standing to file a motion on behalf if his/her religion. This sounds like the biggest organization of a given religion are seen as “representing” that religion. (What if the respondent is of the same religion? What if there’s another organization that interprets their religion’s holy text differently?)

    There are provisions made that allow for valid discussions and deliberations.

    I think there is a line drawn that to vilify another religion or race is not acceptable.

    Religion is responsible for a lot of violence; or more specifically demagogues paired with overly emotional and less than tolerant congregations maybe are responsible for said violence. Our support for the religious hate-mongering is to me equivalent to yelling fire in a crowded theater. Look at the religious right, its support of the Jewish state and the results on the middle east in general — this is a nice web of religion, hatred, politics and ethnicity that we’ve woven.

    Most religions maintain that they are the religions of peace, love, falling waterfalls, dew filled morning meadows and rainbows. When you take it upon yourself to discuss another religion for the purposes of vilification (or misrepresentation) is where the line is drawn. Stick to praising your personal god and stay away from militaristic vilification of their god is all I’m hearing from this Australian law.

    Myself, I think it’s very progressive that some people are taking proactive, legal steps to quell religious hatred and demagoguery.

    I don’t find this a freedom of speech issue as much as effort to allow one to walk down the street in safety from being run over by drunk drivers.

  12. #12 Raging Bee
    August 24, 2006

    Ted: where, in the ruling you cite, is the line between “valid” and “invalid” speech drawn in clear, objective, and easily-understood terms? Yes, the law at least pretends to allow for valid criticism, but the terms and qualifications it uses are so vague, and so easily subject to the whims, feelings and subjective beliefs of potential complainants, that there really is no way to prevent this law being used to punish and harass any criticism of any religion (or, at least, any religion with a high-profile lobbying group that can be said to have “standing”).

    Take any current example of a non-Muslim quoting the Koran and criticising how some Muslims interpret it, and tell me where the law clearly allows such criticism. If a national Muslim organization says this criticism “insults” Muslims, or incites “hatred” or “harsh ridicule,” then the critic has a long and expensive legal battle ahead of him.

  13. #13 Raging Bee
    August 24, 2006

    PS: Your protection-against-drunk-driving analogy is like Hitler at an ice rink.

  14. #14 Raging Bee
    August 24, 2006

    Another thing: where in the ruling, or in the bits of law cited in the ruling, does the law say that a statement about someone else’s religion has to be false to be actionable? From what I read, a critic can be charged for “inciting hatred” even if the offending statements are demonstrably true.

    When you take it upon yourself to discuss another religion for the purposes of vilification (or misrepresentation) is where the line is drawn.

    So public discussion of the merits and demerits of various religions is now verboten? How are “misreprentation” and “vilification” defined? And who is authorized to define them?

  15. #15 Mark
    August 24, 2006

    I think that if the accused had advocated doing harm to Muslims, he should have been reprimanded and punished. However, in my opinion, critical analysis of Islam (or any ideology) is not only fine, but should be encouraged. My only regret is that it wasn’t done in a setting where Muslims could defend the criticisms, and put forth their own about Christianity. But since when has religion been about reasoned debate?

  16. #16 Ed Brayton
    August 24, 2006

    Ted wrote;

    Religion is responsible for a lot of violence; or more specifically demagogues paired with overly emotional and less than tolerant congregations maybe are responsible for said violence. Our support for the religious hate-mongering is to me equivalent to yelling fire in a crowded theater. Look at the religious right, its support of the Jewish state and the results on the middle east in general — this is a nice web of religion, hatred, politics and ethnicity that we’ve woven.

    Most religions maintain that they are the religions of peace, love, falling waterfalls, dew filled morning meadows and rainbows. When you take it upon yourself to discuss another religion for the purposes of vilification (or misrepresentation) is where the line is drawn. Stick to praising your personal god and stay away from militaristic vilification of their god is all I’m hearing from this Australian law.

    But Ted, what you just said about religion is substantively the same thing that was said about Islam in this case – that its adherents tend toward irrationality, intolerance and violence. I don’t think it’s reasonable to say you can’t criticize other religions (and that’s what this law really does, regardless of whatever the text may say about its limitations – just look at how it was used in this case) for being irrational and violent…because religions are irrational and violent. All the more reason to criticize them as such.

  17. #17 Ed Brayton
    August 24, 2006

    Prup-

    One can make a distinction between saying mean things about an ethnic group and saying mean things about a religious group or ideology, but I would argue that such a distinction is irrelevant to the question of whether such speech should be outlawed in either case. I don’t think the government should decide what you can and can’t say about an ethnic group (or gender, or sexual orientation, etc) any more than it should decide what you can and can’t say about a religion or ideology. The real distinction, I would argue, is between actions and words or between ideas and calls for action. There is obviously a distinction between saying, “Islam is a horrible, barbaric religion” and saying, “We should kill all the Muslims in the country before they kill us.” One is an idea, one is a call to action. It’s not a bright line, but there is a reasonable distinction to be made there.

    The problem with prohibitions on saying anything that might offend an ethnic group or gender is that, as we’ve seen with speech codes on campuses, they tend to be enforced very inconsistently (say something against a protected group, get punished; say something against white males, get praised) and they tend to be broadened to punish people for virtually any sin against a protected group, no matter how trivial. Tell an amusing joke based on a stereotype – and a huge portion of all jokes are based on such stereotypes – involving a minority and you can find yourself expelled.

  18. #18 Raging Bee
    August 24, 2006

    Ted: I read your latest citation, and here are the problems as I see them:

    1(a): How is “art” defined? Can I make a painting or movie that portrays Islam as backward and misogynistic, but not a political campaign ad that says the same thing?

    1(b)(i): Criticizing other religions, pretty much by definition, serves a “genuine religious purpose.” And that’s what the Christian defendants were doing when the Muslims called the cops — making a case (not a very convincing one, IMHO) that their religion was better than another. Isn’t that what “freedom of religion” is all about?

    1(b)(ii): Who defines “public purpose?” The national Muslim lobbyists will, of course, say that criticizing Islam or Islamist politics “serves no purpose” and is “divisive.” This sort of hypocritical whinery happens all the time: make an inflammatory statement, then when people get inflamed, portray their response as unproductive.

    1(c): Who defines “fair and accurate?” There’s a zillion denominations of Christianity, each maintaining that its interpretation of Christian doctrine is THE “fair and accurate” version. Oh, and Bill O’Reilly insists that his show is a “no-spin zone.”

    Furthermore, there’s plenty of text elsewhere in this law that forbids speech that “insults,” or incites “hatred,” or “ridicule.” Which means that the “right” people, with the “right” “standing,” need only cry about his hurt feelings, and his critic is then forced to justify his statements.

    If you have to clear your statements in advance with any authority, or with the most thin-skinned of your audience, then that, by definition, means you have no freedom of speech.

  19. #19 Prup aka Jim Benton
    August 24, 2006

    No, Ted, you DO NOT want to go there. These laws do not merely punish statements made by religious leaders against other religions, they punish statements by anyone against specific religions.

    As an atheist, I’m a regular reader of “Carnival of the Godless” and a visitor to other atheistic blogs. Much that appears there is, to me, solid criticisms of the errors and absurdities of Christianity and religion as a whole. But other comments are arguably bigoted and intolerant ‘hate speech’ that condemns Christianity as a whole for the effusions of the most fringe elements — effusions that might be equally condemned by fair-minded Christians, even conservative and Evangelical Christians. (To look even closer, a Christian could argue that Skemono’s comment above was punishable under such laws.)

    And given the bias that almost every society has in favor of the believer and against the unbeliever, it is comments like these that would be punished far sooner than the hateful insanity of a Fred Phelps.

    And offense is in the eye of the beholder, frequently. Look at the cartoon riots of the beginning of the year. To Western eyes, the cartoons were, if anything, too bland and not funny, but to Muslims they were offenses worth fighting over. (Ironically, much of the Middle Eastern response may have come from three forgeries that were never published in Jyllands-Posten but which were circulated by a particularly obnoxious radical Danish imam — the pig face, pedophile, and dog cartoons. One wonders if, given the existence of hate crimes laws, he could have been punished for insulting his own religion and prophet.)

    Finally, remember that it is much more important to defend the right of free speech for people whose ideas you hate than for those who agree with you. This is why many of the landmark cases in American Civil Liberty Law come on behalf of truly obnoxious bigots, Skokie and even more the series of cases involving the Jehovah’s Witnesses, who were — I’m not sure if they still are — viciously anti-Catholic.

  20. #20 Ted
    August 24, 2006

    PS: Your protection-against-drunk-driving analogy is like Hitler at an ice rink.

    I was thinking more of bullshit on stilts but I can buy Hitler at an ice rink.

    So public discussion of the merits and demerits of various religions is now verboten? How are “misreprentation” and “vilification” defined? And who is authorized to define them?

    Apparently the commission and the court according to the Act. To me this doesn’t seem like an intractable problem to well intentioned people. When I purchased my last car I had to sign an arbitration clause in order to purchase it. Is arbitration fair? How is it fair? Whose standards will be used? But I need a car to get around so I bit down hard and bought the damn thing anyway.

    There’s no perfection here but I can live with it. I said before that I reserve the right to decide if I choose to support someones right to hatemonger (irresponsible free speech).

    I’m not giving anyone a blank check that I’d guarantee support to the principle of free speech in a consequence free vacuum.

  21. #21 Neil H
    August 24, 2006

    Australia respects free speech? When did that happen?

    Off the top of my head, my country has one of the worst set of defamation laws in existence (can you US folks wrap your heads around the idea of truth NOT being an absolute defence against libel?), as well as some incredibly poorly defined laws prohibiting “offensive language” in public, a convenient excuse for any police officer to detain a young person who isn’t white should they say “fuck” within earshot. I’m pretty sure that saying “fuck” on the internet is also prohibited by laws covering internet regulation.

    The extent of our free speech protection is the largely meaningless provision of free speech “except where local custom forbids it” in the Universal Declaration of Human Rights, as well as an “implied right to political speech” which a judge ruled about a decade ago had been hidden in the Australian Constitution ever since it was adopted in 1901.

    The poor state of affairs probably comes about because most Australians really don’t give a crap about politics or government, and largely ignore both until they get directly affected somehow.

  22. #22 Ted
    August 24, 2006

    some incredibly poorly defined laws prohibiting “offensive language” in public…

    That’s gratifying to hear. The way Jon Stewart makes you guys sound is like our more redneck and drunken relatives.

    This revelation about not allowing cursing or offensive language at least would seem to indicate that you aren’t mean drunks. Polite even.

    Sorry, I’m watching a TiVo’d roast and got caught up in the moment…

  23. #23 Raging Bee
    August 24, 2006

    Ted: First you say “Religion is responsible for a lot of violence.” (There’s an actionable statement — but I digress.) Then you say that laws to prevent criticism of religions don’t “seem like an intractable problem to well intentioned people.” So are the religious people who try to use the law to silence criticism “well intentioned,” or are they part of the problem of violence? They can’t be both at once.

    And if you support laws to silence certain critics of other people’s religions, it’s probably (I’m guessing here) because you do NOT consider such critics “well intentioned.”

    Take a moment and think of all the things that certain atheists have said about religion and religious people. Now ask yourself how laws like Australia’s might affect their freedom of speech. Still think it’s not a problem?

  24. #24 Ted
    August 24, 2006

    …They can’t be both at once…Take a moment and think of all the things that certain atheists have said about religion and religious people. Now ask yourself how laws like Australia’s might affect their freedom of speech. Still think it’s not a problem?

    I think you’re expecting me to have a wholly consistent, holistic view based on unyielding principle and that’s not gonna happen because it’s a crutch against having to think for oneself. It’s not because I’m intractable, or because I can’t remember what I did yesterday, but because I’m pragmatic and I work every decision through the filter of now. Five minutes ago was ages in some matters. I poked fun at moral relativism the other day, but mostly because I’m a practitioner. :-)

    1. …can’t be both at once…and yet you see no conflict, no dissonance on unrestricted freedoms granted to both speech and religion. The well intentioned people that I’m talking about are not the religious or the anti-religious, but the rational. The judge in the Dover case was religious, yet able to be rational when it was expected. He’s as good an example of well intentioned as I can come up with because he was able to stand outside of dogmatic expectations and follow the law and intent. These people do exist; they’re not extinct yet.

    2. People can complain to the commission and I see it as an arbitration path that can get between voices becoming overly shrill and emotional. The commission and judge may see the submitted complaint as offensive. Or not. Those are the “well intentioned” people that I expect to understand the meaning of the law impartially. (But lets be realistic too, not every commission will be impartial — reference to NLRB; it’s human nature.)

    3. Are atheists above this? I don’t think so — I’ve expressed a number of posts about religious proclivity to violence, irrationality, reliance on metaphysics, etc and I don’t think I’ve violated the spirit of the law 1) because I’m not actively identifying a specific religion, and 2) because the discussion is on scienceblogs (under the cover of scientific debate and discussion) and not on FreeRepublic or some such skinhead site :-). Can atheists discuss these things in the abstract without pointing to a specific group and vilification? I think they can and the law provides exceptions for it when it’s phrased properly. Would atheists choose to do it? I don’t know, but I think they tend toward the dramatic so would seek confrontation and polarization into black/white camps to support their views.

    And you know, my truth and POV doesn’t have to be your truth and POV; I’m not going to demand your march to the ovens just because we don’t agree.

    But I think my contribution to this thread has played out — I’m just answering out of courtesy.

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