Zanghellini, Aleardo --- "Jurisprudential Foundations for Anti-Vilification Laws: The Relevance of Speech Act and Foucauldian Theory" [2003] MelbULawRw 17; (2003) 27(2) Melbourne University Law Review 458
[*] JD cum laude (Milan), LLM (British Columbia), MSt (Oxon); PhD Candidate, Faculty of Law, The University of Sydney. Thank you to the two anonymous referees for their insightful comments, to Bill Black for reading and commenting on an early version of this piece, and to Roy Baker for his encouragement and for forcing me to render some complex ideas more accessible to the reader.
[1] See, eg, Anti-Discrimination Act 1977 (NSW) s 20D.
[2] See, eg, Racial Discrimination Act 1975 (Cth) pt IIA.
[3] See, eg, Anti-Discrimination Act 1977 (NSW) s 20C; Discrimination Act 1991 (ACT) s 66; Racial Vilification Act 1996 (SA) s 4; Racial and Religious Tolerance Act 2001 (Vic) s 7.
[4] Geoffrey Robertson and Andrew Nicol, Media Law (3rd ed, 1992) 169.
[5] See, eg, Anne Flahvin, ‘Can Legislation Prohibiting Hate Speech Be Justified in Light of Free Speech Principles?’ [1995] UNSWLawJl 17; (1995) 18 University of New South Wales Law Journal 327, 339.
[6] For example, the Canadian Human Rights Act, RSC 1985, c H-6, s 13(1) provides:
It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Such grounds have included sexual orientation since 1996: Canadian Human Rights Act, RSC 1985, c H-6, s 3, as amended by Bill C-33, An Act to Amend the Canadian Human Rights Act, SC 1996, c 14, s 2. In the Netherlands, it is a criminal offence to publicly express discriminatory remarks, encourage discrimination, or incite hatred, discrimination or violence against a group of persons on the basis of sexual orientation: see Wetboek van Strafrecht (Netherlands) art 137(c)–(f). See also International Lesbian and Gay Association, World Legal Survey — Country: Netherlands (1999) <http://www.ilga.org/Information/legal_survey/Europe/
Netherlands.htm>. As the latest instance of hate speech legislation, sexuality anti-vilification laws have recently attracted scholarly attention: see, eg, Jonathan Cohen, ‘More Censorship or Less Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives’ (2000) 46 McGill Law Journal 69, 76–91; David Marr, ‘How Can We Square Freedom with Anti-Vilification Laws?’ (2000) 9 Australasian Gay and Lesbian Law Journal 9.
[7] See Commonwealth, Parliamentary Debates, Senate, 27 March 2003, 10 328 (Brian Greig).
[8] The Anti-Discrimination Act 1998 (Tas) s 19 makes it unlawful for a person, by a public act, to ‘incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’, inter alia, sexual orientation.
[9] Sexuality Anti-Vilification Bill 2003 (Cth).
[10] In New South Wales, it is unlawful to publicly ‘incite hatred towards, serious contempt for, or severe ridicule of’ individuals or groups because of their homosexuality, and it is a criminal offence to do so by means which include threats (or incitement of another to make threats) of physical harm towards the victims of such incitement or their property: see Anti-Discrimination Act 1977 (NSW) ss 49ZT, 49ZTA.
[11] See the second reading debate for the Anti-Discrimination (Heterosexual Discrimination) Amendment Bill 2002 (NSW): New South Wales, Parliamentary Debates, Legislative Council, 14 November 2002, 6742.
[12] New South Wales, Parliamentary Debates, Legislative Council, 14 November 2002, 6744 (Ian Macdonald, Parliamentary Secretary).
[13] Ministerial Committee, Parliament of Western Australia, Lesbian and Gay Law Reform (2001) 38–45. The recommendation has not yet been enshrined in legislation.
[15] See, eg, Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 121 (Mason CJ, Toohey and Gaudron JJ).
[16] The three most popular philosophical justifications for freedom of expression are that free speech is necessary to democratic self-government, to the discovery of truth and to individual self-fulfilment: see, eg, Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 15–59.
[17] The Supreme Court of Canada adopts precisely this kind of approach. Generally, when the Court is willing to accept the regulation of some speech as constitutionally permissible, it avoids claiming that the speech at issue is not protected expression under the constitutional free speech guarantee. Rather, the Court starts by recognising that virtually everything is constitutionally protected expression, and goes on to justify speech regulation (where it deems it appropriate) under the following constitutional provision: ‘[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’: Canadian Charter of Rights and Freedoms s 1, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11 (‘Canadian Charter of Rights and Freedoms’). Violent expressive conduct is the exception to the principle that virtually all expressive activities are covered by the constitutional free speech guarantee: see A-G (Quebec) v Irwin Toy Ltd [1989] 1 SCR 927, 970 (Dickson CJ, Lamer and Wilson JJ).
[18] Cf Robert Post, ‘The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v Falwell’ (1990) 103 Harvard Law Review 601, 671, quoting Hanna Pitkin, ‘Justice: On Relating Private and Public’ (1981) 9 Political Theory 327, 343, 346; Roy Baker, ‘Extending Common Law Qualified Privilege to the Media: A Comparison of the Australian and English Approaches’ (2002) 7 Media and Arts Law Review 87, 93–4.
[19] Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 44.
[20] Ibid 62–3.
[21] Ibid 240.
[22] Ibid.
[23] According to the test adopted by the High Court, a statutory measure restricting freedom of political communication will only be constitutional if it is ‘reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 567 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) (‘Lange’). Given the importance of freedom of expression, this is a relatively loose standard and ‘the ground has ... been laid for significant modifications to it’: Chesterman, above n 19, 72. At any rate, laws outlawing vilification on such grounds as heterosexuality and Anglo-Australian identity, as I shall argue, would not pass even such a low-level scrutiny.
[24] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 623 (McHugh J).
[25] See, eg, Franklyn Haiman, ‘Nazis in Skokie: Anatomy of the Heckler’s Veto’ in Thomas Tedford, John Makay and David Jamison (eds), Perspectives on Freedom of Speech — Selected Essays from the Journals of the Speech Communication Association (1987) 216; Laurence Maher, ‘Free Speech and Its Postmodern Adversaries’ (2001) 8(2) E Law — Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v8n2/maher82.html> .
[26] These advocates of hate speech laws criticise such categories of free speech doctrine known as the argument from truth, the argument from democracy, the clear and present danger test (see, eg, Kathleen Mahoney, ‘Hate Speech: Affirmation or Contradiction of Freedom of Expression’ (1996) 3 University of Illinois Law Review 789) and the notion that freedom of expression is a useful tool for minorities (see, eg, Richard Delgado and Jean Stefancic, Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment (1997) 102).
[27] The Canadian constitutional free speech guarantee ensures citizens’ ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’: Canadian Charter of Rights and Freedoms s 2(b). The American free speech clause reads ‘Congress shall make no law ... abridging the freedom of speech, or of the press’: United States Constitution amend I.
[28] In RAV v City of St Paul, [1992] USSC 99; 505 US 377, 391–3 (1992) (Scalia J) the Supreme Court of the United States declared unconstitutional a section of a local piece of legislation criminalising hate speech, finding viewpoint-based regulation of speech impermissible because of the risks such regulation creates of establishing a situation of government thought-control. In Canada, the constitutionality of the Criminal Code, RSC 1985, c C-46, s 319(2), which criminalises the wilful promotion of hatred against identifiable groups, was upheld by the Supreme Court of Canada in R v Keegstra [1990] INSC 224; [1990] 3 SCR 697. The Court recognised that hate speech can cause harm by culturally legitimising the discrimination of minorities.
[29] Mari Matsuda, ‘Public Response to Racist Speech: Considering the Victim’s Story’ (1989) 87 Michigan Law Review 2320.
[30] Ibid 2326–41.
[31] Ibid 2361. Thus, a racist hate speech proscribable under Matsuda’s approach will employ ‘language that is, and is intended as, persecutorial, hateful, and degrading’ (at 2358) and will convey a message of racial inferiority directed against a historically oppressed group (at
2356–70).
[32] See John Austin, How to Do Things with Words (1962). Judith Butler, Excitable Speech: A Politics of the Performative (1997) applies notions of speech act theory to the case of hate speech.
[33] See Judith Butler, ‘Burning Acts — Injurious Speech’ in Andrew Parker and Eve Kosofsky Sedgwick (eds), Performativity and Performance (1995) 197.
[35] Ibid 98–9.
[36] Ibid 116.
[37] In order for an illocutionary act to be carried out, an audience must understand the meaning and the force of the locution: ibid 115–16.
[38] Ibid 145.
[39] See Jürgen Habermas, ‘What is Universal Pragmatics?’ in Thomas McCarthy (ed), Communication and the Evolution of Society (Thomas McCarthy trans, 1979 ed) 1, 53.
[40] Cf ibid 40–4.
[41] Austin, above n 32, 5, 116.
[42] Ibid 12–52, esp 14–15.
[43] Ibid 101.
[44] See also Butler, ‘Burning Acts’, above n 33, 197–8.
[46] See Habermas, Communication and the Evolution of Society, above n 39, 38.
[47] See Jürgen Habermas, The Theory of Communicative Action — Volume 1: Reason and the Rationalization of Society (Thomas McCarthy trans, 1984 ed) 296–7 [trans of: Theorie des Kommunikativen Handelns — Band I: Handlungsrationalität und Gesellschaftliche Rationalisierung].
[49] There are also other categories of institutionally unbound speech acts. Constative utterances, for example, are discussed later: see below n 63 and accompanying text.
[50] The illocutionary result of an utterance can be generally characterised as the enactment of that interpersonal relationship described in the illocutionary component of the utterance. Thus, in the context of institutionally bound speech acts, the illocutionary result that a ship’s name is the Queen Elizabeth can also be described, emphasising the interpersonal relation between the interlocutors, as the fact of the hearers being bound to calling the ship the Queen Elizabeth owing to their being subject to the legitimate authority of the speaker who christened the ship.
[51] See Habermas, The Theory of Communicative Action, above n 47, 307.
[52] Ibid 295–309, esp 308–9.
[53] Or so I want to assume at this stage, for the sake of simplicity. The statement that racist hate speech acts are institutionally unbound will be qualified later in this article: see below n 71 and accompanying text.
[54] A speech act oriented towards reaching understanding is an utterance acceptable on the basis of a rationally testable validity claim raised implicitly by the speaker.
[55] See Habermas, The Theory of Communicative Action, above n 47, 295.
[56] Racist speech acts making a serious offer to justify the validity claims raised in the utterance would not be criminalised by Matsuda (as confirmed by her exemption for the wrong social scientist): see Matsuda, above n 29, 2364–5. When the speech act is directed to reaching understanding it is possible to make the validity claims raised by the utterance become the object of serious theoretical argumentation: see Habermas, Communication and the Evolution of Society, above n 39, 63–4.
[57] Nevertheless, Katharine Gelber, Speaking Back: The Free Speech versus Hate Speech Debate (2002) 70–80 usefully applies Habermas’s doctrine of the validity claims to the case of hate speech acts.
[58] See Michel Foucault, ‘The Subject and Power’ in Hubert Dreyfus and Paul Rabinow (eds), Michel Foucault: Beyond Structuralism and Hermeneutics (1982) 208.
[59] Ibid 219–26.
[60] Ibid 222.
[61] See, eg, Delgado and Stefancic, above n 26, 72–82.
[62] See, eg, Matsuda, above n 29, 2331–5. The fact that this discourse can be found in connection with certain institutions does make the hate speech acts pointing to the ‘true’ norms produced by such a discourse become institutionally bound in a technical sense. This is because nowadays the norms on racialised minorities giving those speech acts their illocutionary force tend not to be the correct outcome of the regulated process through which a legitimate institution produces its official norms. For example, the narratives on racialised minorities produced by a judicial body will tend to be found in obiter dicta, cursory remarks or specific use of language and at most find an inexplicit, ambiguous expression in the official (as opposed to the discursive, ‘true’) norms produced by the judicial institution. (For an analysis of how the decision in RAV v City of St Paul, [1992] USSC 99; 505 US 377 (1992) adds in this way to the discourse about American blackness, see Butler, ‘Burning Acts’, above n 33, 212–14. For the way in which Indian-ness is discursively constructed by judicial institutions, see Marlee Kline, ‘The Colour of Law: Ideological Representations of First Nations in Legal Discourse’ (1994) 3 Social & Legal Studies 451). Having said this, historically there have been clear cases of institutional norms denying racial minorities equal respect: see, eg, Ian McKenna, ‘Canada’s Hate Propaganda Laws — A Critique’ (1994) 26 Ottawa Law Review 159, esp 163–7. See also below n 71 and accompanying text.
[63] See Habermas, Communication and the Evolution of Society, above n 39, 55.
[64] Ibid.
[65] Thus a racial slur uttered by a member of the same minority group as the victim’s cannot have the same illocutionary effect as one in which the speaker and the addressee belong, respectively, to a dominant and a subordinated group. An intra-group racist utterance would not allow the illocutionary result of subordination to take place because, in Austin’s terms, a ‘misapplication’, that is a particular type of infelicity (Austin, above n 32, 17), would have occurred.
[66] Robert Post characterises the harm identified by Matsuda as harm to identifiable groups that contributes to maintaining the oppression of disadvantaged minorities (rather than harm to individuals or harm to the marketplace of ideas): see Robert Post, ‘Racist Speech, Democracy, and the First Amendment’ in Henry Louis Gates Jr et al (eds), Speaking of Race, Speaking of Sex (1994) 115, 119. However, the example provided in the text illustrates that the dichotomy between individual harm and harm to groups is not clear-cut.
[67] Matsuda, above n 29, 2332.
[68] See, eg, QFG v J M [1997] EOC 92-902. In that case, note the rhetorical effect of such recurrent expressions used by Ambrose J as ‘lifestyle’ (at 77 420, 77 425–6, 77 428, 77 430–1, 77 438–9) — which in the judgment is invariably lesbian and never heterosexual — contrasted with ‘normal’ (at 77 419–21, 77 424–30, 77 436–7, 77 439, 77 442) — which consistently appears as an attribute of heterosexuality.
[69] For example, several Australian states do not allow lesbian and gay couples to adopt: see, eg, Adoption Act 2000 (NSW) s 26; and a valid marriage for the purposes of Australian law must be between a man and a woman: see Re Kevin (2001) 28 Fam LR 158, 161 (Chisholm J).
[70] See Adoption Act 1993 (ACT) s 18(1); Adoption Act 2000 (NSW) s 26; Adoption of Children Act 1994 (NT) s 13(1)(a); Adoption of Children Act 1964 (Qld) s 12(1); Adoption Act 1988 (SA) s 12(1); Adoption Act 1988 (Tas) s 20(1); Adoption Act 1984 (Vic) s 11(1). Adoption by same sex de facto couples is permitted in Western Australia: Adoption Act 1994 (WA) ss 39, 67 and Interpretation Act 1984 (WA) ss 5, 13A.
[71] For example, the Native Title Amendment Act 1998 (Cth), in unduly restricting the recognition of Aboriginal people’s interests in land, failed to treat Aboriginal Australians with equal respect.
[72] See Butler, Excitable Speech, above n 32, 18.
[73] Discourses make the subject possible. The way in which discourses interact in constituting subjects gives rise to a combination that allows for other discourses to be elaborated and to re-constitute the subject. Because no discourse is complete in itself and seamless, the subject can turn the discourse against itself and in the process undergo resignification: see generally Judith Butler, ‘Contingent Foundations: Feminism and the Question of “Postmodernism”’ in Judith Butler and Joan Scott (eds), Feminists Theorize the Political (1992) 3.
[74] Gelber, above n 57, 88–91 identifies other reasons why punitive or restrictive responses to hate speech are not the least problematic.
[75] Cheshire Calhoun, Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement (2000) 5.
[76] William Turner, A Genealogy of Queer Theory (2000) 32–3.
[77] For analogous reasons, the illocutionary force of a constative ‘heterophobic’ hate speech act is more similar to that of the utterance that lesbians and gay men are surrounded by rainbow-coloured halos than to that of the homophobic statement that gay men are vessels of disease.
[78] Gelber, above n 57, 80–3 reaches a similar conclusion, but does so by applying Habermas’s doctrine of the validity claims to the case of anti-Anglo-Australian ‘vilification’.
[79] See Matsuda, above n 29, 2335–41.
[80] The harm to the marketplace of ideas, if taken on its own, may be a problematic basis on which to justify hate speech laws. For example, in the marketplace of ideas, queer expression has been ostracised, marginalised, ghettoised and essentialised. But these attempts have been less than successful at least in countries where lesbians and gay men, although not enjoying equal rights, are not officially and positively per-/prosecuted because of their sexual orientation. The notion of intersectionality suggests that gay men and lesbians are neither a homogeneous group nor subjected to the same sort of discrimination and the same degree of silencing practices. Race and gender meet sexual preference and fasten around bodies, intersecting with class relations and a myriad of other factors, to create peculiar experiences of discrimination and empowerment. The same discourses that silence and constrain us in certain contexts incite us to speak up in others. In this sense, the silenced minority of lesbians and gay men has been less than silent. However, this does not mean that lesbians and gay men have been able to participate on equal terms in the process of society’s self-definition; they have been silenced, if not as a group, at least as individual histories.
[81] See also Gelber, above n 57, 81–7.
[82] In the context of New South Wales homosexual vilification legislation it has been noted that in order for speech to unlawfully vilify under the Anti-Discrimination Act 1977 (NSW) it is not ‘sufficient to prove that the victim was deeply wounded or concerned for their privacy, or indeed safety’: Burns v Dye [2002] NSWADT 32 (Unreported, Judicial Member Britton, Members Silva and Toltz, 12 March 2002) [63] (Judicial Member Britton and Member Toltz) (‘Burns’).
[83] Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (1997) 74.
[84] See Habermas, The Theory of Communicative Action, above n 47, 290.
[85] Ibid 292.
[86] Cf Gelber, above n 57, 87.
[87] See Mahoney, above n 26, 797.
[88] See, eg, ibid 796.
[89] Consider, for example, Kathleen Mahoney’s contention that whilst the argument from democracy was appropriate in the 18th century, it no longer fits the circumstances of 20th (and 21st) century Western democracies: ibid. A response to her contention is that it was precisely in the 20th century that free speech jurisprudence justifying protection for political speech as a vital ingredient of democratic self-government originated in the United States. During the same period of time there developed a greater appreciation of the function of the free speech guarantee as largely the democratic one of protecting political dissent. These phenomena started exactly as a response to 20th century governmental suppression of political (in particular communist) speech. See also Henry Louis Gates Jr, ‘War of Words: Critical Race Theory and the First Amendment’ in Henry Louis Gates Jr et al (eds), Speaking of Race, Speaking of Sex (1994) 17, 21.
[90] See Matsuda, above n 29, 2357.
[91] For example, the Crimes Act 1958 (Vic) s 321G, in connection with s 2A, makes it an indictable offence to command, request, encourage, propose, advise, authorise or otherwise incite ‘any other person to pursue a course of conduct which will involve the commission of an offence’. The law rightly provides that it is not necessary for the incited offence to occur in order for the inciter’s speech to be punishable: s 321G(3). However, it goes too far in providing that even if it was impossible for the incited offence to be committed, the speech is punishable so long as the inciter thought the offence could take place. As the Supreme Court of the United States noted in Brandenburg v Ohio[1969] USSC 139; , 395 US 444, 447 (1969) (Warren CJ, Black, Douglas, Harlan, Brennan, Stewart, White and Marshall JJ):
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
However, the shortcomings of incitement laws is an issue different from the one at hand. The fact that the offence of incitement is not ideally defined in Victoria clearly does not detract from the point that anti-vilification legislation directed to preventing violence against ‘dominant’ groups would be an unjustifiable free speech infringement.
[92] [1997] HCA 25; (1997) 189 CLR 520, 567. See above n 23.
[93] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[94] From this perspective, the failure of Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 (Unreported, Hennessy DP, Members Farmer and Jowett, 22 June 2000) [96] (Hennessy DP, Members Farmer and Jowett) to distinguish between vilification of ‘dominant’ groups and of minorities while examining the constitutionality of racial anti-vilification legislation is analytically unfortunate. However, interestingly, the New South Wales Anti-Discrimination Board declined all racial vilification complaints (not formally withdrawn or otherwise failing to be pursued) lodged with it by Anglo/British people between 1993 and 1995: see Luke McNamara, ‘Research Report: A Profile of Racial Vilification Complaints Lodged with the New South Wales Anti-Discrimination Board’ (1997) 2 International Journal of Discrimination and the Law 349, 350, 369. This may indicate that, at least in its operation, the law does not protect ‘dominant’ groups.
[95] Cf Chesterman, above n 19, 244 (making this observation with respect to Australian racial vilification laws).
[96] Even so, Gelber, above n 57, 88–90 points out that the New South Wales anti-vilification legal regime has shortcomings of its own.
[97] Burns [2002] NSWADT 32 (Unreported, Judicial Member Britton, Members Silva and Toltz, 12 March 2002) [21] (Judicial Member Britton and Member Toltz).
[98] Ibid [64].
[99] Ibid [22].
[100] Certain circumstances could make a speaker’s perlocutionary aim fail even without compromising the illocutionary success of the utterance. Thus a gay-friendly audience would be highly unlikely to be incited to hatred by a hate speech act successful at the illocutionary level. However, if the hate speech act is an illocutionary success, it is more difficult to think of circumstances making a hate-monger’s perlocutionary aim fail on the hypothetical audience that the law specifically focuses on (ie, the ordinary reasonable person ‘not immune from susceptibility to incitement or prejudice’: ibid [65]). Thus, the law’s attention to the likely success of the hate-monger’s presumed perlocutionary aim (incitement to hatred) can be viewed as a concern for the subordination of lesbians and gay men occurring at the illocutionary level.
[101] Ibid [62].
[102] Is the slur — albeit an infelicity as a regulative as well as constative (see above n 66 and accompanying text) utterance regarding the football player — still an illocutionary success as a constative speech act about lesbians? I am inclined to think that the felicity of the slur as a constative utterance on lesbians would be disturbed by the illocutionary failure of the slur as a regulative/constative utterance on the football player (the slur is not a statement about lesbian identity independent of its quality as an utterance on the football player).