January 29th 2005


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Articles from this issue:

COVER STORY: Lessons of the tsunami tragedy

TAX REFORM: Time to abolish income tax?

NATIONAL AFFAIRS: Labor needs new direction as well as new leader

CANBERRA OBSERVED: Labor after the Latham experiment

WA ELECTIONS: Labor's Geoff Gallop looking at defeat

FREEDOM OF SPEECH: The perils of vilification laws

EDUCATION: Deconstructing 'Critical Literacy'

STRAWS IN THE WIND: Ockham's Razor ... or Jack the Ripper? / Hogarth's Melbourne / Victoria's ailing hospitals

RUSSIA: Putin, Communism, and Santamaria's hopes for Russia

INDONESIA: Jemaah Islamiah's threat to regional security

Swifter response needed (letter)

Labor misrepresented (letter)

WW2 Allied air raids (letter)

CINEMA: Behind the Kinsey legend

BOOKS: BIOEVOLUTION: How Biotechnology is Changing the World, by Michael Fumento

BOOKS: EICHMANN: His Life and Crimes, by David Cesarani

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FREEDOM OF SPEECH:
The perils of vilification laws


by Bill Muehlenberg

News Weekly, January 29, 2005
A raft of new legislation is being passed throughout the Western world. These laws are called by various names, such as vilification or tolerance or discrimination laws. Sometimes they are referred to as hate-crime legislation. Whatever their title, these laws are problematic for a number of reasons.

There are different types of vilification laws, based on a wide variety of issues, such as race, religion, gender, sexuality and ethnicity. They often come with stiff penalties if a person is found guilty.

While the intentions behind them may have been good (to reduce hatred and vilification, etc), these laws have generated a number of worrying outcomes (whether intended or not). I list here 10 major shortcomings of this type of legislation:

A first problem with these sorts of laws is that they tend to confuse different issues. For example, one should not mistreat or discriminate against particular persons because of something they cannot help, such as their country of birth or their gender. But these laws are less helpful in other areas, such as in lifestyle choices or in religious beliefs. When a belief or behaviour is chosen, it is quite different from something that is intrinsic to a person and cannot be altered.

Thus, in the Victorian Racial and Religious Tolerance Act 2001, we have the conflation and confusion of two quite different issues: race and religion. Race cannot be helped. You are born into one race and remain a member of that race for the rest of your life. But religion is different. While most people at first follow the religious practices of their parents or community, when older, people often will accept or reject that religious upbringing. Religious conversion of course is a chief example of this.

There are a few rare exceptions, when both race and religion overlap, as among Jewish people. Jews can be described as both a race and a religious community. But some Muslims want to claim both race and religion for their faith, something which is clearly far-fetched.

Similarly, some homosexuals argue that they are born that way. But sexual preference is not at all akin to racial make-up. Increasingly, however, vilification laws are being passed which include sexual orientation.

Victoria's vilification legislation confuses two quite different issues, and muddies the waters from the very beginning. Fortunately two Australian states have recently dropped plans for religious vilification legislation: South Australia and Western Australia. They have realised that while there might be a case for racial vilification laws, there is no rationale for religious vilification legislation.

Second, these laws are usually broad, vague, nebulous and filled with ambiguous and unclear terminology. Consider the Victorian Act. It speaks of "severe contempt", "revulsion" and "severe ridicule". Such terms are far too subjective, arbitrary and loose to serve any useful role in a judicial setting.

Good legislation should always have not only clear terminology, but also clear aims and objects. A law is a bad law if one is never quite sure whether it applies to oneself or not. Such fuzziness in the legislation makes these laws particularly vulnerable to misuse and abuse.

One can act in good faith, and still be found guilty. Indeed, acting "reasonably and in good faith" is part of the exceptions in the Victorian legislation. Yet two Christian pastors who thought they were doing exactly that were told by a judge that they were not. So some official must now determine, with all the wisdom of Solomon, what is in good faith and what is not.

In fact, the very issue of acting in "good faith" seems to be thrown into doubt in the Victorian Act when it states that a "person's motive in engaging in any conduct is irrelevant"! If motivation is irrelevant, then how can one begin to even speak about acting in good faith? Is that not a matter of motivation and intent?

Third, these laws are usually instigated by particular members of the community at the expense of the rest of the community. In Victoria, it was mainly certain Muslim and Jewish groups which pushed for the legislation. There was no general demand for the legislation.

When the Victorian legislation was first debated, the Government and Opposition received more than 15,000 submissions, letters and e-mails on the issue, with almost all of them against it. In spite of this huge outcry by the community, a handful of politicians, influenced by a handful of minority activists, foisted this unpopular and unnecessary law upon all Victorians. So much for democracy at work.

Twice I publicly debated the author of the legislation. On both occasions she said that she did not feel there would be many cases at all arising because of this legislation. But as I pointed out, if that is the case, why do we need the law in the first place? If so few cases are expected, then that proves that things are fine as they are, and we do not need this big-brother legislation forced upon us.

Fourth, most Western nations and states already have legislation on the books that deals with assault, incitement to violence, defamation, slander or libel. All the serious activities that do warrant political and legal sanction are already covered. So why the need for these extra laws, unless there is an attempt to promote someone's agenda, to engage in social engineering and manipulation?

Fifth, usually in these laws the burden of proof is on the one accused of being offensive or of vilifying. Unlike the usual course of judicial events, the person charged is in effect found guilty until proven innocent. Those charged must prove that they have not committed the crime, or why they qualify for any exemptions. And usually they must bear all the expenses as well (court costs, legal costs, time off work, etc.) In the meantime, the one bringing the charges gets the full backing of the state, often with all costs paid by the state (or taxpayer). Thus these laws are discriminatory and are unjust in their application.

Sixth, when religious cases are involved, we have the anomaly of a secular judge or authority making complex judgements on matters of religious and theological dispute. When religious people themselves are quite divided on many questions of theology and religion, how is some secular arbiter who knows nothing of the theological subtleties and complexities supposed to make a helpful and informed decision concerning issues that would baffle and divide even professional theologians and religious educators?

The State should not encroach into religious matters, and should not set itself up as an arbiter of theological disputes. It is exactly the hallmark of totalitarian states when governments decide upon questions of religion and belief. By telling people what to think and what to believe, the State moves well beyond its role in a democratic society.

Seventh, concerning religious vilification, the whole idea of bringing up concepts like offence and vilification is quite bizarre. Religious truth claims by definition imply that some religions are true, some are false.

Of course a Muslim will be offended if a Christian says that Jesus is God. Of course a Hindu will be offended if a Muslim claims that only Islam is the final and true religion. Of course an atheist will be offended if a Jew insists that God exists. Of course a Christian will be offended if a Muslim says Jesus did not die and rise again from the tomb.

If an atheist scoffs at the claims of Mohammed and mocks the Koran, of course a devout Muslim will take offence. If homosexual activists send up nuns in a pride march, of course Catholics will feel ridiculed and vilified. If I say that Jesus is the only path to eternal life, of course universalists will be offended.

Devoid of truth

To seek to do away with all feeling of ridicule, offence and insult would be to effectively rob most religions (and especially those which make exclusive truth claims) of most of their core doctrines and teachings. We will be left with a watered down lowest-common-denominator mish-mash that offends no one. And one which is totally devoid of truth as well.

But of course many of those behind the multicultural lobby and the push for tolerance (and the authors of these laws) have exactly that in mind. Indeed, plenty of inter-faith councils and other ecumenical bodies have stated their aims quite clearly in this regard. They seek to rid the world of what they consider to be offensive religious claims. And usually the claims of Christianity are first and foremost the ones they have in mind.

Eight, hate crimes are double jeopardy. Not only are the crimes themselves judged, but now so too are the "bad thoughts" behind them. Hate-crime legislation says we must punish you further for the hateful thoughts that went into your illegal action.

In fact, it is even worse than that: it creates a crime where none previously existed. By simply expressing a point of view which results in no outward action, a judge can rule that your words may have incited violence or hatred. So we have here a crime with no victims. There is only the potential for an unpleasant outcome to occur. Someone, somewhere, sometime, might be offended. No crime has taken place. Just some vague potential for someone to feel offended, maybe.

Nine, hate-crime laws are bad laws because they punish people for their thoughts. In turn, thought police are needed to make sure everyone is thinking politically allowable thoughts.

But who determines what a hate crime is? And how? If a homosexual activist calls a Christian a bigot, is he guilty of a hate crime? If a secularist calls a concerned Catholic a religious Taliban, is that a hate crime?

There seem to be a lot of double standards here. Christians are vilified every day, but I do not hear those screaming for tolerance and acceptance rushing to their defence. But if Christians dare stand up for what they believe in, they are dragged off to the tribunals by those same advocates of tolerance.

Ten, the very idea of vilification legislation is a severe curb on freedom of speech. The right to argue one's case, to criticise other points of view, to point out differences of religious and political viewpoints - these are all fundamentals of a free and democratic society.

When we say that government officials will decide who is allowed to debate issues, and how that debate its to take place, we are then moving away from freedom to repression. And when state authorities decide questions of political and religious truth, we have then moved from democracy to tyranny.

  • Bill Muehlenberg




























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