Insulting religion and legal consequences

Two recent news items raised interesting issues of free speech about religion and its legal consequences. One was a comment by Mr Peter FitzSimons; the other a report about an “anti-Muslim” banner being flown at a football game.

1. Peter FitzSimons

Peter FitzSimons, sports and general social commentator, is well known in Australia for his opposition to religion generally. In two articles this week he commented on the decision of a Mormon rugby league footballer, Will Hopoate, not to play or train on Sundays on the basis of his religious convictions about observing the Sabbath: see “Join me on a walk through the minefield of Will Hopoate’s decision not to play NRL on Sundays” (Sydney Morning Herald, 30 March 2016); and “The questions thrown up by Will Hopoate’s decision not to play in the NRL on Sundays” (SMH, 2 April 2016).

Mr Hopoate’s decision is an interesting issue in itself, though not a very complex one, as he had apparently received approval from his employing club for this policy before signing his latest contract. Presumably he is a valuable enough player for the club to think it worthwhile to employ him, even if he has to miss the occasional game.

But what was interesting was the language that Mr FitzSimons used to speak about the decision. While the first post on Wednesday consciously tried to walk the line between acknowledging Mr Hopoate as a good man, and scorning his decision, it still contained some strong language about religion in general, and “Mormonism” (the beliefs of the organisation formally known as the “Church of Jesus Christ of Latter Day Saints”, or LDS Church) in particular.

For example, religious belief generally was described as “belief in a Magic Sky Daddy”. Mormonism was described as “ludicrous”, though, to be fair, no more so than all other religions. Islam was characterised as belief in “a Supreme Being called Allah who actually wants his followers to blow up and maim those who are not his followers”. Mr FitzSimon’s most venomous attack, of course, was reserved for Christianity, which was summed up the following derogatory way:

“that a cosmic Jewish zombie who is his own father can make you live forever if you symbolically eat his flesh and drink his blood, while telepathically telling him that you can accept him as your master, so that he can remove an evil force from your soul which is present in all humanity because a woman made out of one rib bone and a mound of dirt was tricked into eating fruit from a magical tree by a talking snake”

The fact that quotation marks were inserted may signal that these immortal words were not Mr FitzSimon’s own, but taken from somewhere else.

Clearly not satisfied that his first attacks had been strong enough, Mr FitzSimons returned to his theme in his second post on Saturday. In particular this post takes aim at the LDS church, pointing out that:

  • First, many other Mormon athletes, including many in Utah, the home of the LDS church, choose to play on a  Sunday. (Presumably this is Mr FitzSimon’s way of telling Mr Hopoate that he doesn’t really understand his own religion properly, and ought to take lessons from Mr FitzSimons, who will enlighten him.)
  • Second, that the LDS church until 1978 “was an officially racist organisation, for the fact that it would not accept black members into their lay priesthood.” This statement may well be true, and indeed I suspect would be affirmed by many current members of the LDS church.

For good measure, though, Mr FitzSimons also wanted to clarify that “Islam is as much complete gibberish as the rest of them, and in its case too often used as inspiration for terrorist acts with catastrophic consequences.”

Do I agree with Peter FitzSimons? Not entirely. I take issue with the way he describes Christian doctrine. I think it might even be said to be a trifle unfair to tar a young Australian footballer (who was presumably not even born in 1978 when the policy changed) with the past errors of his church. I happen to disagree with most of the doctrines of Islam but would not described them as “gibberish”.

But I am glad that we live in a country, Australia, where Peter FitzSimons is free to express his views in the newspapers, and I, and others, can read them and disagree.

Yet one thing that concerns me is that there are laws in Australia which, on one view, Peter FitzSimons may have broken. These are laws that forbid so-called “religious vilification”.

These laws are not present in every State (nor are there any such laws at the Commonwealth level.) There is no such law in NSW, which is where Peter FitzSimons is based. But there are laws in Victoria and Tasmania which, if his remarks were published in those States, might make him liable for damages. I would like to address the jurisdictional question briefly, before turning to the substantive issue of liability.

(1) Can a publication in NSW be unlawful in Victoria or Tasmania?

The answer to the question in the heading here, as to so many other legal questions, is: “It depends”! But what does it depend on? For our purposes we are considering only possible liability under religious vilification laws in those States.

In Victoria the relevant provision is s 8 of the Racial and Religious Tolerance Act 2001 (Vic).

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 – SECT 8

Religious vilification unlawful

(1)     A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note “Engage in conduct” includes use of the internet or e-mail to publish or transmit statements or other material.

(2)     For the purposes of subsection (1), conduct—

(a)     may be constituted by a single occasion or by a number of occasions over a period of time; and

(b)     may occur in or outside Victoria.

In Tasmania, the relevant provision is s 19 of the Anti-Discrimination Act 1998 (Tas).

19. Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of – …

(d) the religious belief or affiliation or religious activity of the person or any member of the group.

There is a definition of “public act” in s 3 of the ADA 1998 as follows:

public act includes –

(a) any form of communication to the public; or

(b) any conduct observable by the public; or

(c) the distribution or dissemination of any matter to the public;

On its face, the Victorian legislation is quite clear- the Victorian Parliament has purported to outlaw speech on the internet that takes place outside the State. The Tasmanian law is not so clear- there is no explicit statement of “extra-territorial” application of that legislation. In a case I have referred to in a previous postBurns v Gaynor [2015] NSWCATAD 211, the NSW Civil and Administrative Tribunal held that NSW law forbidding “homosexual  vilification” was not intended to capture the uploading of material onto a website hosted in Queensland, where the uploading itself occurred in that State, despite the fact that persons in NSW could then read the material- see paras [17]-[18]. While the legislation in question was worded differently to the Tasmanian provision here, it seems that similar considerations may make it unlikely that a court would hold that the Tasmanian Parliament had intended to penalise someone for material uploaded in NSW.

(On the other hand, the decision of a Tribunal does not formally establish a precedent for future courts; and it should be noted that,  in a previous decision in Corbett v Burns [2014] NSWCATAP 42, while the Appeal Panel of the Tribunal did not fully canvass the issues due to the non-appearance of the defendant, the Panel had accepted at para [63] that it was arguable the republication on the internet of a report written in Victoria might amount to a “public act” in NSW, and hence be actionable under the NSW law dealing with homosexual vilification.)

The intention to penalise behaviour in other States does seem clear, however, under the Victorian legislation. There are some quite tricky issues of Constitutional law, I think, on the question as to whether a Victorian court would have power to require Mr FitzSimons to travel to Melbourne to answer for his remarks. Nevertheless, for the moment it should be noted that it is at least arguable that Mr FitzSimons might be held liable in Victoria if a Victorian reader could consult the articles online.

(2) Do the articles amount to “religious vilification”?

On the substantive liability issue, the answer is also unclear. Still, it would seem arguable that some of the words noted above do in fact have an objective tendency to “incite… severe ridicule of” the beliefs of Christians, Mormons or Muslims. But is that the same thing as inciting such ridicule of “persons” holding those beliefs?

I think a sensible reading of the legislation would say that it is not the same. There is a difference between ridiculing or attacking the beliefs of a person, and ridiculing or attacking that person themselves. Such an approach was taken in the excellent judgment of Nettle JA (as his Honour then was) in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284. In overturning a lower Tribunal decision penalising a Christian group for comments critical of Islam, his Honour commented at par [15]:

Section 8 does not prohibit statements about religious beliefs per se or even statements which are critical or destructive of religious beliefs. Nor does it prohibit statements concerning the religious beliefs of a person or group of persons simply because they may offend or insult the person or group of persons. The proscription is limited to that which incites hatred or other relevant emotion and s.8 must be applied so as to give it that effect.

Later, at para [32], his Honour concluded:

[The Tribunal] did not give a great deal of consideration to the distinction between hatred of the religious beliefs of Muslims and hatred of Muslims because of their religious beliefs. The Tribunal appears to me to have assumed that the two conceptions are identical or at least that hatred or other relevant emotion of or towards the religious beliefs of Muslims must invariably result in hatred or other relevant emotion of or towards Muslims. In my view, that is not so.

It seems likely, then, that while Mr FitzSimon’s comments arguably would incite “severe ridicule” of beliefs held by Christians, Mormons or Muslims, in the context they do not go further and endeavour to induce hatred or ridicule of those persons as persons. That seems a very sensible outcome.

(3) Possible defences (if needed)

Even if it might be argued that the remarks in question cross the line to incite hatred, contempt or ridicule of persons, it seems likely that defences applying under the relevant statutes would mean that there would be no liability.

In Victoria, the following defence provision applies:

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 – SECT 11

Exceptions—public conduct

(1)     A person does not contravene section 7 or 8 if the person establishes that the person’s conduct was engaged in reasonably and in good faith— …

(b)     in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for—

(i)     any genuine academic, artistic, religious or scientific purpose; or

(ii)     any purpose that is in the public interest

Section 55 of the Tasmanian ADA 1998 provides a similar defence.

It seems plausible to say that the comments above were made “reasonably and in good faith… for…[a] purpose that is in the public interest”. Of course one should not have to agree with Mr FitzSimon’s apparent view that all believers must be persuaded to become atheists, to conclude that his remarks were intended to be “in the public interest”. For the purposes of a provision protecting free speech, arguably the question of what is in the “public interest” should be “did the speaker genuinely intend that his views would benefit the public”?

To hold otherwise, that a court in assessing this defence must objectively weigh up the “public interest” in a position advocated by a commentator, would be to stifle free public debate, and impose a burden on courts that they are unsuited to bear. Sadly, such a view seems to have been taken in a case decided under the Tasmanian legislation, Williams v Threewisemonkeys and Durston [2015] TASADT 4, where a Tribunal held the defendant liable for “homosexual vilification” and at para [38] dismissed a “public benefit” defence under s 55 of the ADA 1998, apparently on the basis that the Tribunal member disagreed with the remarks that had been made. As I have noted previously on this aspect of the case:

With respect to the Tribunal, this is fairly unsatisfactory. The implication seems to be that the Tribunal has formed its own view on the policy questions discussed in the pamphlet, and decided that they are not “in the public interest”. This cannot be the way that the provision is to be read. What about the “public interest” in free speech and open discussion of controversial issues? Of course the Tribunal need not agree with the views expressed in the pamphlet, but if they are put forward to further general discussion of the issues, and not “targeted” at a specific individual, then surely the “purpose” of the activity was a matter of public interest.

Again, decisions of Tribunals are not binding as precedent on later courts, and I have to say that in my opinion this aspect of the decision in Threewisemonkeys was clearly wrong.

2. The football banner

At an AFL match between Richmond and Collingwood, two Victorian teams, at the Melbourne Cricket Ground, a banner attacking Islam was displayed by some members of the crowd: see “Anti-Muslim ‘Stop the mosques’ banner unveiled at MCG ‘will not be tolerated’, AFL boss says” (ABC News, 2 April 2016).

The content of the banner seems to have been the words “UPF- Go Pies – UPF – Stop the Mosques”. The otherwise enigmatic “Go Pies” phrase can be explained by the fact that Collingwood’s logo is a magpie, and the team, in accordance with good Australian traditions of abbreviation, is commonly called the “Pies”. “UPF” stands for “United Patriotic Front”, an organisation well-known to be opposed to Islam.

As this act occurred in Victoria, there is no doubt that those who displayed the banner may have fallen foul of s 8 of the Victorian legislation, extracted above. Clearly there has been “conduct”. It could be argued that the conduct has the potential to incite “hatred against, serious contempt for, or revulsion or severe ridicule of” Muslims on the basis of their religion. Officials are quoted in the news report as saying that the banner “vilified” Muslims and was “deeply offensive”.

I was not at first entirely convinced that the words on the banner do in fact go this far. Again, as noted above, the law is aimed at protecting persons, not ideas. The sentiment that mosques should not be built (which seems the most obvious meaning of the banner) does not of itself directly tend, it seems to me, to incite the sort of hatred or contempt that the legislation requires.

Would there be a defence under s 11 of the Victorian Act if it were thought that the banner did have these tendencies? It seems unlikely that those involved had themselves a deep religious conviction that mosques should not be built, under s 11(1)(b)(i), although it is possible. Their strongest argument presumably would be that the issue is one of the “public interest” under s 11(1)(b)(ii). On the other hand, I am more reluctant to say that this sort of behaviour would fall within that defence. There is a difference between publishing an opinion piece in a public newspaper which may generate intelligent discussion, and simply erecting a three-word banner at a football match. Patrons at a football match are not there to engage in political discussions. In particular, given the excited and volatile nature of large crowds at sporting events, erecting a banner of this sort may indeed spark off not just verbal, but physical, disputes in the crowd, and lead to actual violence. Hence it seems possible, despite the fairly anodyne nature of the message, that in the particular context it could be seen as inciting hatred of persons.

On balance it seems possible, then, that this banner, given the context of a rowdy football crowd, might have an the effect of inciting hatred, not just towards ideas, but towards actual Muslim persons at the game. And for that reason it seems plausible that s 8 may have been breached, and that there would be no s 11 defence.

It may surprise some to know that in my view this is not a bad outcome. I have written a longish academic paper where I discuss issues about religious “hate speech”, and there I conclude that, while the law should neither penalise the mere causing of “offence”, nor the expression of opposition to ideas or beliefs, it is sensible for the law to penalise the incitement of hatred against people on the basis of their religion. I cite Jeremy Waldron, who in his excellent book The Harm in Hate Speech (Cambridge, Mass; Harvard UP, 2012)  makes a careful but impassioned case for the desirability of  such “hate speech” laws. Waldron correctly points out that real harm can be experienced by those who are part of a minority group which is confronted on a regular basis by written and visual reminders that some would exclude them from civil society.

Hence it would be a bad outcome were banners inciting hate or exclusion for Muslims, especially more serious banners than this one, to be regularly displayed at sporting events or in the streets. So long as s 8 of the Victorian Act operates only in that context, then it seems a reasonable law.

The impact of religious hate speech laws

However, I remain uneasy about such laws. While there is some room for them, as I have argued, they need to be carefully confined so that they do not stifle genuine debate on important issues. If Mr FitzSimons is correct, if all religious believers are deluded and wrong, then he is doing us all a favour by pointing out this fact. It may be uncomfortable and offend us to hear him do it in the way that he does, but his is a voice that should be heard in debate. (Of course, while he continues to conduct the debate from his side in insults, he may not find a very effective means of persuasion. But that is for him to weigh up!)

Hence, while laws to deal with the dangers of oppressive social exclusion of religious groups by incitement of religious hatred are reasonable, I would like to suggest that they need to be carefully confined. It would be better if the insights gained through expensive litigation such as the Catch the Fire decision were clearly incorporated into legislation, so that those who resort to it know what its limits are from the outset. Such legislation ought to target incitement of hatred, etc, against people, not ideas; those who attack and challenge ideas should be given free reign to do so. Laws certainly ought not to target the mere causing of “offence”, as another provision of the Tasmanian legislation does. (See my previous post on the current proceedings against an bishop for explaining Christian doctrine, for critique of that law.) Clarified and confined in that way, laws of this sort may contribute to the public good. Otherwise they might lead to the suppression of a debate on vital issues about the meaning of life, which urgently needs to be conducted.

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